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(Revised) THE LORD CHIEF JUSTICE: This Appellant was convicted in December last at the Central Criminal Court of one count of inciting others to cause a public nuisance by obstructing the highway and two counts of himself causing a public nuisance in the same way. He was sentenced to nine months', three months and three months imprisonment concurrent. The matter now comes before this Court on an appeal on points of law and on an application for leave to appeal on other grounds. The facts, so far as they need to be stated, are as follows: this Appellant was indicted with one Moule, who in fact was tried separately. Both cases arose out of demonstrations organised by the Committee of 100 (and possibly the Save Greece Now Movement) on the occasion of the Greek Royal Visit. The first count related to the 9th July and was that the Appellant himself caused a public nuisance, apparently then a large body of people assembled in Trafalgar Square, and some of them succeeded in forcing their way through police cordons along Whitehall. It was said that pedestrian and other vehicular traffic was obstructed. The Appellant, while agreeing that he was there, said that he had caused no obstruction, and indeed that he did not take a leading part in the demonstration. The other two charges arose out of another demonstration and march organised on the 11th July. These two charges were first that he himself caused a public nuisance by obstruction, and also that he incited others to do so. Once again the demonstration had been called for in Trafalgar Square, and the object of the demonstration was to proceed to Claridge's Hotel. The police tried to prevent this, and the evidence against the Appellant was that a Police Constable Brown had seen the Appellant moving between groups of people saying: "We are ready to go to Claridge's. Form into a queue and follow me. We can expect some opposition from the police but we will get there eventually if we all stick together". They then apparently formed a queue, or at least it was said they formed a queue five abreast, and attempted to circumvent the police cordons, following the Appellant's directions. At one point he was said to have said: "Follow me. We will beat them yet", and "We must get into Piccadilly. That's my route for getting to Claridge's", and again during this time it was said that the traffic was obstructed. The first grounds put forward by this Appellant concerned his right of challenge of Jurors. Before going into the details of his grounds, it is convenient to state shortly what happened. In fact, of the first nine Jurors that were called into the box, two were sworn and seven were challenged peremptorily by the Appellant. He then claimed the right of asking Jurors as they came forward, to stand by, in other words not to challenge them for cause as they came to the book to be sworn, but of asking them to stand by until he had gone through all the panel, whatever "the panel" may mean. This clearly somewhat novel procedure surprised, very naturally, the Judge, but the prisoner then referred to a categorical statement in Volume 10 of Halsbury at page 412 which says this: "The Crown has no peremptory challenge in any case, but may challenge by asking that the Juror 'stand by for the Crown' as the names are called over, and is not bound to show the cause of challenge until the panel is gone through", and then follow these words: "A defendant whose peremptory challenges have been exhausted, may follow the same course". That having been quoted to the learned Judge, he allowed the matter to proceed on that basis. A further 18, I think it was, were then stood by, and a point of time came when the Clerk of the Court got up and announced: "My Lord, that exhausts the panel I have available". The Appellant disputed that; how far he went is not clear, but he claimed that others ought to be brought, that others were available. Whether he was referring to the rest of the 400 or 500 who were on the panel for the Central Criminal Court for that session is not clear, but it is clear that he was saying the panel had not been exhausted. Thereupon one of the prospective Jurors called Ward who had been stood by was brought back to be challenged if need be for cause, and at that stage an adjournment was asked for, because the prisoner said that he wanted to call evidence in order to challenge Ward and others. That adjournment was granted, and in order that no conceivable injustice should be done to the Appellant, he was told the ten names of the Jurors who would be called the next morning and whom he had a right to challenge for cause. The next day, after the adjournment, however, the prisoner again sought to claim that the panel had not been exhausted, and to have other prospective Jurors called to stand by, and he said categorically that he was not prepared to challenge anybody for cause; he took up his stand on this: "I think my position is that the whole of the panel have not been gone through, I am not prepared even to consider him for a Juror; and if he is sworn now I would like it to go on the record that this is with my objection and without my co-operation". Thereupon the ten members of the panel were brought back and the prisoner taking up his stand in that way and not challenging for cause, they were duly sworn and a Jury of twelve wore thus constituted. Arising out of what took place then, the Appellant takes a number of points. His first and his fundamental point is that he had as a matter of law a right, after exercising his seven peremptory challenges, to stand by Jurors -that is really a provisional challenge - until the whole panel was exhausted before having to show cause against anyone. A second point raised is that the panel on its true construction is not merely those members of the Jury who are at present in Court, but all others - as I have said it is not clear whether he means the big panel summoned for the Central Criminal Court for the Session or not - but at any rate it includes all who are readily available and that it was not shown in fact that others were not available. He makes a third point that when those that had been stood by were in fact recalled they were not recalled in the same order. As it seems to the Court, the fundamental question here is whether after the exercise of the undoubted right to seven peremptory challenges a prisoner has the right of going through the panel asking prospective Jurors to stand by before having to show cause. Luckily this sort of thing does not happen very often in this country, but it is quite good for us to look into the history of the matter and have it in mind. The history of the matter so far as the Crown itself is concerned is that prior to 1305 the Crown had an unlimited right of peremptory challenge. It is interesting that as early as 1305 it was felt that this was unfair to the subject, and that it might be abused by the Crown of the day, who might instruct his Attorney to challenge everybody, thus in effect keeping a prisoner in prison without trial. Accordingly, by the statute of 33 Edward I Chapter 2 peremptory challenges by the Crown were abolished, and the Crown could thereafter only challenge for cause. But then, whether as a matter of construction of that statute or as a matter of practice, it was found convenient that before the Crown should show cause, they should be entitled to go through the panel, stand by, as it was called, the Jurors in order to see whether an acceptable Jury could be sworn without having to challenge for cause. If the panel having been gone through, the Crown had not allowed twelve Jurors to be sworn but had stood them by, then it became necessary to recall the prospective jurors and challenge them for cause. That, as it is quite clear from the old cases, became not merely a rule of practice but a right in law. One need only refer in this connection to two or three of the old cases. In 25 State Trials at page 1 there is the report of the trial of John_Horne Tooke for high treason, and in that case at page 26 Lord Justice Eyre said: "Your Counsel advised you very properly not to resist the challenges for the Crown, in the course in which these challenges have been taken. As far as our legal history affords us any information upon the subject, the course is a clear one; the Crown has no peremptory challenge, but the course is, that the Crown may challenge as the names are called over, and is not bound to show the cause of the challenge until the panel is gone through; that is the course of proceeding, which is now so established that we must take it to be the law of the land". In the case of Frost in 4 State Trials New Series at page 86, Baron Parke said at page 124: "Mr. Kelly says that it is a matter of practice only; but this is not strictly speaking a matter of practice. It is a matter which has been regularly adopted, and could not be adopted by the Judges except upon their view of the construction of the statute of Edward I". Again in the case of Mansell, reported in State Trials New Series Volume 8, this right of the Crown is looked upon as a matter of law. That is the position in regard to the Crown. So far as the subject is concerned, originally at common law he had 35 peremptory challenges for treason and for felony. The number of peremptory challenges was altered from time to time, but at any rate by the Juries Act of 1825, Section 29, the subject had 35 peremptory challenges for treason and 20 for murder and felony. Finally so far as the statutes are concerned, his peremptory challenges were reduced to seven by Section 35 of the Criminal Justice Act, 1948. It is worth recalling that that Act was passed at a time when the prisoner had been deprived of all peremptory challenges by reason of Defence Regulations in 1940, which had been continued until December 1948. That is the position so far as peremptory challenges are concerned in the case of the subject. There is no case as this Court sees it which lays down that in addition to the right of peremptory challenge there is a legal right in an accused to stand by the prospective Jurors before assigning cause, though it has been done in some cases as a matter of convenience. In particular it has been done in the case of misdemeanours. In the case of misdemeanours, until Section 35 of the Act of 1948 a prisoner had no peremptory challenges at all. He was given by that section seven challenges in the case of misdemeanour and his previous right of challenge in the case of felony reduced to seven also. The Court has been referred to two cases of misdemeanour where the subject was allowed the same right as the Crown. In the case of Blakeman reported in 3 Carrington and Kirwan's Reports at page 97 the defendants had been indicted for a riot and assaults, which were misdemeanours. In that case Mr. Justice Vaughan Williams said: "I think that it is a fair node of practice to allow defendants in misdemeanour to object to the Jurors as they are called, without showing any cause, till the panel is exhausted and then to recall the Jurors in the same order in which they were called at first, and then not to allow any challenge except for cause. This was the constant practice on the Welsh Circuit, where challenges of Jurors very frequently occur". It is to be observed that Mr. Justice Vaughan Williams in that case allowed it to be done, there being no right of peremptory challenge, and he thinking it, as others had, "a fair node of practice" in misdemeanours. To the same effect is Creed v. Fisher which is to be found in 9 Exchequer Reports page 472. In that case Baron Parke as an interjection said this: "In a case of misdemeanour, tried before me at York, the whole of the jury was objected to without opposition. I then required the names of the jurymen to be called over again, and causes to be shewn, and by that means we obtained a jury. In practice it has been usual, as a matter of courtesy, to allow peremptory challenges in civil cases and misdemeanours, but it is not a matter of right". There are two observations on that. It is clear that what was being done was being done as a matter of courtesy, and secondly that the reference there to allowing peremptory challenges in misdemeanours is of course referring perhaps not quite aptly to the objection by way of stand by. So far as misdemeanour is concerned, since 1948 there clearly is no need to grant this right of stand by as "a fair mode of practice", to use Mr. Justice Vaughan Williams words, or "as a matter of courtesy", to use Baron Parke's words, because the prisoner now has what he did not have in the case of misdemeanour before, a right of peremptory challenge. So far as felonies are concerned, as I have said there is no case where it has been established that there ever was such a right in the prisoner. In Mansell's case, to which I have referred, the Court was not concerned with the procedure of challenge by the subject, but in the course of his judgment Chief Justice Cockburn in the Court of Exchequer Chamber said: "In one of the early state trials, Fitzharris case, the Chief Justice used language as if, in practice at that time, this privilege was not confined to the Crown, but that either side might set aside the juror and afterwards take their exceptions". Then he goes on: "But he that as it may, it must be admitted", and so on, the point not being decided, or necessary for decision. It has been brought to the attention of the Court that although the Chief Justice, who was Sir Francis Pemberton, in Fitzharris case, does use words in a passage which intimate that there is a similar right in the subject, yet the same Chief Justice in the trial of Grey in 9 State Trials at page 127 says: "If they challenge any person for the King, they must show cause in due time. For I take the course to be, that the King cannot challenge without cause, but he is not bound to show his cause presently; it is otherwise in the case of another person". Lastly Mr. Chandler with great industry has found and referred us to a case tried at Assizes in the year 1839 by Mr. Justice Vaughan, the case of Regina v. Dagnes, reported in 3 Justice of Peace at page 293. It does appear in that case, which incidentally again as in Mansell was dealing with the right of the Crown, that in his judgment or ruling Mr. Justice Vaughan said: "The Counsel for the prosecution had only followed the course of practice usual on such occasions, and had challenged a juror as he cane to the book to be sworn. This might he done by both parties, till the whole panel had been gone through". It is not in fact clear whether Mr. Justice Vaughan was referring to this right to stand by, but at any rate that passage, in so far as it purports to say that it might be done by both parties, was clearly obiter since only the Crown's right was being considered. Accordingly, as this Court sees it, the position today is that there never has been a right in the subject to adopt what is the right of the Crown, and that the real ground for granting the privilege of standing by jurors was when there was no peremptory challenge, as in the case of misdemeanour. That of course is not to say that in an exceptional case, whether felony or misdemeanour, a Judge cannot in his discretion, himself stand by a juror or allow a prisoner to do so. But it certainly in the judgment of this Court is not a legal right that the prisoner has. Accordingly, not having that right, it is difficult to see how this Appellant can complain if he was not fully dealt with in accordance with what he claims to be that right. Being purely a matter of discretion, it would be open to the Judge at any time to compel a prisoner to act according to what were his strict rights and force him to challenge a juror for cause and not let him stand by. Accordingly, as it seems to this Court, it is unnecessary to consider the further two questions under this head, namely as to what exactly the panel consists of, and secondly as to the order in which jurors who have stood by should be recalled and opportunity given for challenge. Before however leaving that point, it should be borne in mind, and the Court has borne in mind, that this Appellant claims that in fact he was in some way prejudiced, that if he had known that he was not going to be able to stand by more than "X" number of jurors, he would have adopted a different course, he would have allowed some of the jurors that he had stood by to be in fact sworn. The Court has listened to all that Mr. Chandler has to say on that point, but they remain quite unconvinced that he was in any way prejudiced. The truth of the matter is that the Judge afforded him a privilege to which he was not entitled, and that when it appeared that the panel was exhausted he was called upon to challenge. Having said that, this Court is far from saying that the panel was not exhausted in this case, or far from saying that there was any improper manner in which the Jurors were recalled; all the Court holds is that it is unnecessary for then to go into those points. One further point was taken by the Appellant arising out of what took place at that early stage. That concerns a ruling by the learned Judge that he, the Appellant, could not cross-examine one of the Jurors if the Juror was challenged for cause. What had happened was this, that a Mr. Ward was called as a prospective Juror and the Appellant said "I object to this man by cause", then he goes on "and I think as far as the procedure is concerned here I am entitled to put him in the witness box at some stage and cross-question him. (Judge Roberts) No, you are not entitled to do that. The law is quite clear on the subject. (The Prisoner) Halsbury says if I establish a prima facie case I am allowed to cross-examine him in the box. (Judge Rogers) You are not allowed to question a juror about a challenge. That is clear from the case of Dunn. You have exhausted your preliminary challenges. Do you want to challenge him on the ground of cause? (The Prisoner) Yes. (Judge Rogers) And the cause is ... ? (The Prisoner) That he is antagonistic towards the Committee of 100. (Judge Rogers) Have you any evidence on that? (The Prisoner) I can produce witnesses if you like: but I would have to ask for an adjournment until tomorrow to put this case". Accordingly and as I have already said, the prisoner was granted an adjournment and given the names of those whom be would have to challenge if he so desired for cause. The Appellant now takes the point that while it nay have been right for the Judge to rule that at that stage without more ado he was not entitled to cross-examine Mr. Ward, yet that if he did establish a prima facie case that Mr. Ward was not impartial, a tine might come when he did have a right of cross-examining. It is quite clear from the transcript that, as worded, there is a ruling that at no time will there be a right to cross-examine the Juror, but the Court thinks it is very doubtful whether it was taken in that way by the prisoner, or intended by the Judge. Be that as it may, the fact of the matter is that before any right to cross-examine the Juror arose the Appellant would have to lay a foundation of fact in support of his ground of challenge. It is no good his saying: "I think this man is antagonistic", or calling somebody to say: "I do not think he likes processions, he thinks they are unreasonable There oust be a foundation of fact creating a prima facie case before the man can be cross-examined." This prisoner was allowed the adjournment; he was given the names of those who would be brought back to be sworn and when the next day came the prisoner categorically took up the stand: "I am not going to call any evidence to challenge for cause, I am not going to challenge for cause at all. I am taking up the attitude that I have been deprived of my right of going through the whole panel". In those circumstances, this Court cannot possibly see how this Appellant can make any use of this point. I would only add that he himself thought so little about it that it did not appear in his grounds of appeal to this Court at all, but was allowed to be added to the grounds by the Court. That is almost enough to dispose of this case, but there are two other natters which form the ground of an application as opposed to an appeal. The first is that the Judge wrongly ruled that Chief Detective Inspector Dickinson, a witness for the prosecution, need not answer a certain question. What happened was this, that Chief Inspector Dickinson was called to say that he had seen the Appellant on these two days, and in cross-examination he was asked: "Were any of the Officers under your instructions directed to keep an eye on me during this State Visit? (A) May I discuss this, my Lord. (Judge Rogers) Were any Officers under your control given any instructions about this man? (A) I believe they were, in fact, my Lord. (The Prisoner) I will be presenting a letter I have already written to Inspector Dickinson asking for this information in advance: but I would like to know the names of any Officers given special duties in connection with me, because I want to call those officers as witnesses". The Judge ruled that the witness need not answer that question. In the opinion of this Court he was perfectly justified in so ruling. The prisoner had not brought the question and answer to the stage where he was entitled to have the names. He tells us now that there were one or two officers he knows whose special duty was to keep an eye on him and who were in effect at his elbow metaphorically on these two days, and that he would have liked to have known their names in order to call them as his witnesses. What he would have got out of them no one can tell, but the Judge had a perfect right to prevent the witness from answering a general question of that sort as to the names of any Officers given special duties in connection with him. If he had got to the stage of one or two, then it may be he could ask the names, though in the opinion of this Court the better course would have been to say to the Judge "Will you please ask the prosecution to tender these two men as witnesses then I can cross-examine because I have now shown they were present at the time and must be able to give relevant evidence". However, as the Court sees it, that point was never reached in this case and the learned Judge was perfectly entitled to rule as he did, and to indicate as he did that the prisoner had a strong point to make to the Jury, namely "There were a lot of people detailed to follow me and not one of them was called; that can only mean that not one of them saw me commit any offence at all", and no doubt that point was made to the Jury. Finally a point was raised which again was not in the grounds of appeal, but as I understand it was directed to this, that the conviction ought to be quashed because such obstruction as occurred did not have a degree of permanency which was suggested was necessary in such a case. Mr. Chandler referred us to a case or cases concerning the granting of injunctions when an injunction is not granted unless there is some continuity of the activity which it is sought to restrain. Those cases, as it seems to this Court, are miles away from this case. On the facts here there was ample evidence upon which the Jury were entitled to arrive at their verdict, which was that there had been in two cases an obstruction amounting to a public nuisance, and in the other that he had incited others to commit such a public nuisance. Accordingly, so far as these proceedings raise points of law alone, the appeal is dismissed; and in so far as they are matters of application for leave to appeal, they are refused. THE APPELLANT: Is it permissible for me to apply for leave to take to the House of Lords the points of public importance which I submit have been raised in connection with the Juror in particular during these proceedings? THE LORD CHIEF JUSTICE: Mr. Leonard, do you want to say anything on that? MR. LEONARD: No, my Lord, I do not think so; your Lordship has heard from the Solicitor General - (Their Lordships conferred) THE LORD CHIEF JUSTICE: What we will do, Mr, Chandler, is that we will certify that a point of law of general public importance is involved in the decision, namely: whether there is a legal right today in an accused to follow what is the right of the Crown in regard to standing Jurors by and not challenging for cause until the panel is exhausted. That is the only point upon which we certify, and on that we refuse you leave. That means that you can go to the Appeals Committee of the House of Lords and ask them to give you leave on that point. THE APPELLANT: Yes, I see; is it not possible at this stage for me to ask for bail so that I can work on the points involved? The point is that he raised a number of new issues which last night I did not have any access at all to any reference in order to do this, and in order to be able to adequately put this, I would very much like to be able to go into the points which he raised, most of which were completely new to me. (Their Lordships conferred) THE LORD CHIEF JUSTICE: The point, Mr. Chandler, is that if we had given you leave to appeal then we would have full power to make such an order, but you not being an Appellant since we having refused you leave, we have no power to grant you bail. You would have to go to the House of Lords. THE APPELLANT: I see, right, thank you. 14.

MR. JUSTICE EDMUND DAVIES: In July last at Nottingham Assizesm the appellant, having been indicted for and acquitted of the murder of Sylvia Jeannette Nott, was found guilty of manslaughter and was sentenced by Mr. Justice Glyn-Jones to 15 years imprisonment. He now appeals to this Court on a point of law against that conviction, and he also applies for leave to appeal against sentence. The facts may be shortly stated. On Sunday, May 31st, 1964, the dead body of Mrs. Nott was found in the River Ouse within a few yards of the defendant's van which stood near the bank. The corpse bore the marks of grave injuries. The face had been battered, the hyoid bone had been broken and there had been some degree of manual strangulation. These injuries were likely to have caused unconsciousness and eventually death, but they were inflicted a half-hour or an hour before death supervened and did not in fact cause it. According to the medical evidence her injuries were inflicted not long before Mrs. Nott was thrown into the river, but she was alive when that was done, she continued to breathe for an appreciable time afterwards, and the eventual cause of death was drowning. When the accused was first interviewed about the matter he lied, but ultimately signed a statement admitting complicity in the death. He then said that he had taken Mrs. Nott to his van for sexual purposes, that he was unable to satisfy her and she then reproached him and slapped his face; they then had a fight during which he knocked her out and thereafter she only moaned. The statement continued: "I was shaking her to wake her for about half and hour, but she didn't wake up, so I panicked and dragged her out of the van and put her in the river". He repeated this account at his trial and then said, and said for the first time, "I thought she was dead". The outline of the case for the prosecution, therefore, was this: The gravity of the injuries inflicted during life clearly pointed to an intention by the accused to cause grievous bodily harm to or the death of Mrs. Nott. Her death was in fact brought about by the action of the accused in shortly thereafter throwing her still-living body into the river. Did it make any difference, as far as the murder charge was concerned, whether or not the accused believed she was then already dead? On this question the learned trial Judge gave at page 26 CD this direction : "His case is that he genuinely and honestly believed that she was dead. I direct you that, if that his genuine and honest belief, then when he threw what he believed to be a dead body into the river, he obviously was not actuated by any intention to cause death or grievous bodily harm; you cannot cause death or serious bodily harm to a corpse. Therefore the question for you is: Have the prosecution satisfied you that his story told before you today ... that he believed she was dead, is untrue: and that the truth is that he threw her into the river not caring whether she was alive or dead but simply to get her out of his van, so that he would not be caught and punished for what he had already done to her?" The Jury were thus told in plain terms that they could not convict of murder unless it had been proved that the accused knew that Mrs. Nott was still alive when he threw her into the river or (at least) that he did not then believe she was dead. We venture to express the view that such a direction was unduly benevolent to the accused and that the Jury should have been told that it was still open to them to convict of murder, notwithstanding that the accused may have thought his blows and attempt at strangulation had actually produced death when he threw the body in the river, if they regarded the accused's behaviour from the moment he first struck her to the moment when he threw her into the river as a series of acts designed to cause death or grievous bodily harm. See Thabo Meli v. Regina. 1954, 1 All England Reports at page 373. In the present case the Jury, directed as they were, acquitted of murder. They had, however, been told that the trial Judge could see no ground upon which the accused could be acquitted of all crime and they convicted of manslaughter. Against that conviction the accused now appeals on the ground that there was a basic misdirection when the Jury were told (as they were) that, as to the offence of manslaughter, it was irrelevant whether the accused genuinely and honestly believed the body to be dead at the time of immersion. Against the background of the basic direction regarding the nature of the Crown's burden of proof as to murder, it seems to this Court that at least three possible bases of the manslaughter verdict call for consideration:- (a) Criminal Negligence. A grosser case of criminal negligence it would be difficult to imagine. As the trial Judge put it at page 28 at B to C:- "What steps did he take to find out whether she was alive or dead? He seems to have made no attempt, according to him, to find out whether she was breathing or not. He seems to have made no attempt to feel whether her heart was beating. Surely these are elementary steps. You have then nothing left but his bare unsupported statement: 'I thought she was dead'. All he had done had been to shake her and she had not recovered consciousness. Do you think that persuaded him that she was dead, or do you not?" That passage was directed to the charge of murder. As to manslaughter, the following direction was given at page 31D to F:- "..If, not knowing whether the woman was dead or not, and not having taken the trouble to find out whether she was dead or not, he throws her body into the river, you may (if you think fit) come to the conclusion that that was a negligent act done utterly recklessly without regard to the danger to life or limb that would be caused by it - and that would be another ground on which the throwing of the body into the river would be manslaughter". That direction has been strongly criticised as wholly inadequate in relation to criminal negligence as expounded in Bateman, 1925, 19 Criminal Appeal Reports, page 8, and Andrews v. The Director of Public Prosecutions, 1937, 26 Criminal Appeal Reports, page 34. But the nature of the direction called for must depend on the facts of each case. In the judgment of this Court, the facts in the present case were such as to render an elaborate direction unnecessary. Utter recklessness was the standard which the Jury were told had to be applied, and the evidence amply justified a verdict that it had been established. (b) Provocation. There is no room for doubt that the plea of provocation had but a flimsy basis and wholly justified the adverse summing-up on this issue. The injuries inflicted on the deceased in the van were so grave, those sustained by the accused in the alleged fight so trifling, that the question raised by the trial Judge at page 26 C: "Do you think that that degree of reaction bears any reasonable proportion to the alleged provocation, or do you not?" permitted of only one answer from a reasonable Jury. But the matter does not stop there, because, as the Jury were told at page 25 C to D: ".. it seems to me impossible to say (and defence counsel concedes this) that the provocation could have extended beyond the infliction of the injuries in the van; it cannot possibly extend to the final act of throwing the body into the river". Inexplicable though a Jury's verdict may be and improper though it generally is to embark on enquiry as to its rationale (Rex v. Larkin, 1942, 29 Criminal Appeal Reports, page 18),this Court is forced to the conclusion that the verdict returned was not based upon provocation reducing what would otherwise have been a murderous act to one of manslaughter. (c) An unlawful act causing death. Two passages in the summing-up are here material. They are these; (1) at page 30H: "If by an unlawful act of violence done deliberately to the person of another, that other is killed, the killing is manslaughter even though the accused never intended either death or grievous bodily harm. If this woman was alive, as she was, when he threw her in the river, what he did was a deliberate act of throwing a living body into the river. That is an unlawful killing and it does not matter whether he believed she was dead or not, and that is my direction to you", and (2) at page 33A: "I would suggest to you, though it is of course for you to approach your task as you think fit, that a convenient way of approaching it would be to say: What do we think about this defence that he honestly believed the woman to be dead? If you think that it is true, why then as I have told you, your proper verdict would be one of manslaughter, not murder". Such a direction is not lacking in authority; see for example Shoukatallie v. The Queen (1962 Appeal Cases, page 81 in Lord Denning's opinion at pages 86 and 92) and Dr.Glanville Williams Criminal Law, 2nd Edition at page 173. Nevertheless, in the judgment of this Court it was a misdirection. It amounted to telling the Jury that, whenever any unlawful act is committed in relation to a human being which resulted in death there must be, at least, a conviction for manslaughter. This might at one time have been regarded as good law - see, for example, Fenton's case (1830 1 Lewin, page 179). But it appears to this Court that the passage of years has achieved a transformation in this branch of the law and, even in relation to manslaughter, a degree of mens rea has become recognised as essential. To define it is a difficult task, and in Andrews v. The Director of Public Prosecutions (1937, 26 Criminal Appeal Reports page 34) Lord Atkin (at page 45) spoke of "the element of 'unlawfulness which is the elusive factor". Stressing that we are here leaving entirely out of account those ingredients of homicide which might justify a verdict of manslaughter on the grounds of (a) criminal negligence, or (b) provocation or (c) diminished responsibility, the conclusion of this Court is that an unlawful act causing the death of another cannot, simply because it is an unlawful act, render a manslaughter verdict inevitable. For such a verdict inexorably to follow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm. See, for example, Regina v. Franklin (1883, 15 Cox Criminal Cases, page 163), Regina v. Senior (1899, 1 Queen's Bench, page 283), Rex v. Larkin (29 Criminal Appeal Reports page 18,in Mr. Justice Humphreys Judgment at page 22), Regina v. Buck & Buck (1960, 44 Criminal Appeal Reports page 213 at page 218) and Regina v. Hall (1961, 45 Criminal Appeal Reports, page 366 at pages 370 and 373). If such be the test, as we adjudge it to be, then it follows that in our view it was a misdirection to tell the Jury simpliciter that it mattered nothing for manslaughter whether or not the accused believed Mrs. Nott to be dead when he threw her in the river. But, quite apart from our decision that the direction on criminal negligence was an adequate one in the circumstances, such a misdirection does not, in our judgment, involve that the conviction for manslaughter must or should be quashed. In the light of Thabo Meli it is conceded on behalf of the appellant that, on the murder charge, the trial Judge was perfectly entitled to direct the Jury, as he did at page 24 C to D that: "Unless you find that something happened in the course of this evening between the infliction of the injuries and the decision to throw the body into the water, you may undoubtedly treat the whole course of conduct of the accused as one". But for some reason not clear to this Court, appellant's Counsel denies that such an approach is possible when one is considering a charge of manslaughter. We fail to see why. We adopt as sound Dr. Glanville Williams view in the book already quoted from at page 174 that, "If a killing by the first act would have been manslaughter, a later destruction of the supposed corpse should also be manslaughter". Had Mrs. Nott died of her initial injuries a manslaughter verdict might quite conceivably have been returned on the basis that the accused inflicted them under the influence of provocation or that the Jury were not convinced that they were inflicted with murderous intent. All that was lacking in the direction given in this case was that, when the Judge turned to consider manslaughter, he did not again tell the Jury that they were entitled (if they thought fit) to regard the conduct of the accused in relation to Mrs. Nott as constituting throughout a series of acts which culminated in her death, and that, if that was how they regarded the accused's behaviour, it mattered not whether he believed her to be alive or dead when he threw her in the river. Having regard to the summing-up as a whole, the difference between what was said to the Jury and that which, in the opinion of this Court, should have been said is so minimal that we consider that no substantial miscarriage of justice resulted. On the whole of the facts and upon such a direction as we have indicated, we are satisfied that the proper and inevitable verdict would have been one of guilty. It cannot conceivably be said, in our judgment, that the misdirection referred to deprived this appellant of a chance of total acquittal on the indictment which was fairly open to him. We accordingly regard this as a proper case to apply the proviso to Section 4(1) of the Criminal Appeal Act, 1907, and, having done so, dismiss the appeal against conviction. As to sentence, the trial Judge said: "I think this is the worst case of manslaughter I have ever heard of". It was unquestionably a terrible case, and young though the accused was (being merely 21 at the time of the crime) and minor though his previous convictions were, this Court cannot say that the sentence of 15 years, while undoubtedly severe, was wrong in principle. We have been urged to hold that, as it appears to have been said in another place that a life sentence involves incarceration of up to 10 years, it was wrong in principle that this accused, convicted of manslaughter, should be called upon to remain in prison at least as long as, and possibly longer, than he would have been had the Jury convicted him of murder. That consideration this Court cannot have regard to. As this Court said in Regina v. Singh on 23rd February 1965, but unreported, "... the Court has in mind that 'life sentence' means a sentence for life, and that any remission as a result of which a prisoner is released is a matter entirely for the Home Secretary". The application for leave to appeal against sentence is accordingly also dismissed, MR. JAMES: My Lords, in respect of the appeal against conviction would your Lordships certify that a point of law of general public importance is involved; the point that I have in mind is this, that in respect of death by criminal negligence, what is the duty of care owed by an accused person in dealing with that which is believed to be inanimate? MR. JUSTICE EDMUND DAVIES: I have not consulted my Brethren yet, Mr. James, but I should have thought off-hand that the basic fallacy in the reasoning of that question is: supposed to be inanimate. That presupposes that the belief that one was dealing with an inanimate object was a reasonable belief which was not arrived at by criminal negligence. MR. JAMES: It must be the subjective test, and judged in the light of the reasonable objective basis. MR. JUSTICE EDMUND DAVIES: In relation to the death. MR. JAMES: By criminal negligence. What is the duty of care owed by an accused person in dealing with that which he believes to be inanimate? (Their Lordships conferred) MR. JUSTICE EDMUND DAVIES: Thank you, Mr. James, but your application is refused, the Court being unable to certify.

(Revised) LORD JUSTICE DIPLOCK: The appellant was indicted at the Crown Court Liverpool upon two counts arising out of events which took place in the early hours of the morning on the 30th September 1966. The first count was robbery with violence. He was convicted of larceny from the person, and sentenced to eighteen months upon this count. His application for leave to appeal against conviction and sentence on this count was refused by the single Judge and has not been pursued. The second count was wounding with intent to do grievous bodily harm contrary to Section 18 of the Offences Against the Person Act, 1861. On this indictment it was open to the jury under Section 5 of the Prevention of Offences Act 1851 to find him guilty of unlawfully cutting, stabbing or wounding; and then the Section goes on: "and thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for the misdemeanor of cutting, stabbing, or wounding". The misdemeanor there referred to was at that date the misdemeanor created by Section 4 of the same Act, which so far as is relevant provided that: "If any person shall unlawfully and maliciously ... cut, stab, or wound any other person, every such offender shall be guilty of a misdemeanor". That misdemeanor has now been substituted by the offence created by Section 20 of the Offences Against the Person Act, 1861; and in the view of this Court although there is in Section 5 of the Prevention of Offences Act, 1851 no express reference to "maliciously" as well as "unlawfully", the reference to "the misdemeanor" in which those adverbs appear together makes it clear that when the jury bring in an alternative verdict under Section 5 of the Offences Against the Person Act the ingredients of the offence of which they find the accused guilty are identical with those with which they would have to find him guilty under Section 20 of the Act of 1861. The jury in this case did find the appellant guilty of unlawful wounding. The learned Judge in summing-up explained to the jury the meaning of "unlawfully" so far as was relevant to the defence put forward by the appellant, which was that the only blows which he had admitted were delivered in self-defence. But nowhere in the summing-up did the Judge mention the word "maliciously" or give the jury any directions as to its meaning. It was for this reason that the single Judge gave leave to appeal against the appellant's conviction for unlawful wounding so that this Court might be given an opportunity to consider to what extent it is necessary in a case of this kind to give to the jury express instructions upon the meaning of the word "maliciously" such as those as are discussed in R. v. Cunningham, (1957, 2 Q.B., 396). "Unlawfully and maliciously" was a fashionable phrase of Parliamentary draftsmen in 1861. It runs as a theme with minor variations throughout the Malicious Damage Act and the Offences Against the Person Act passed in that year. R. v. Cunningham was a case under Section 23 of the Offences Against the Person Act, which provides: "Whosoever shall unlawfully and maliciously administer to, or cause to be administered to or taken by any other person any poison, or other destructive or noxious thing, so as thereby to endanger the life of such person, or so as thereby to inflict upon such person any grievous bodily harm, shall be guilty of felony." The facts were very special. The appellant went to the cellar of a house and wrenched the gas meter from a gas pipe and stole it together with its contents, and gas seeped through the wall. The cellar was under a divided house, one part of which an elderly couple occupied, and one of them inhaled some gas and her life was endangered. He was indicted under Section 23 of the Act. No doubt upon the facts the jury should be instructed that they must be satisfied before convicting the accused that he was aware that physical harm to some human being was a possible consequence of his unlawful act in wrenching off the gas meter. In the words of the Court, "maliciously in a statutory crime postulates foresight of consequence", and upon this proposition we do not wish to cast any doubt. But the Court in that case also expressed approval obiter of a more general statement by Professor Kenny, which runs as follows: "In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) Recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured". This generalisation is not, in our view, appropriate to the specific alternative statutory offences described in Sections 18 and 20 of the Offences Against the Person Act 1861 and Section 5 of the Prevention of Offences Act 1851, and if used in that form in the summing-up is liable to bemuse the jury. In Section 18 the word "maliciously" adds nothing. The intent expressly required by that Section is more specific than such element of foresight of consequences as is implicit in the word "maliciously" and in directing a jury about an offence under this Section the word "maliciously" is best ignored. In the offence under Section 20, and in the alternative verdict which may be given on a charge under Section 18, for neither of which is any specific intent required, the word "maliciously" does import upon the part of the person who unlawfully inflicts the wound or other grievous bodily harm an awareness that his act may have the consequence of causing some physical harm to some other person. That is what is meant by "the particular kind of harm" in the citation from Professor Kenny. It is quite unnecessary that the accused should have foreseen that his unlawful act might cause physical harm of the gravity described in the Section, i.e. a wound or serious physical injury. It is enough that he should have foreseen that some physical harm to some person, albeit of a minor character, might result. In many cases in instructing a jury upon a charge under Section 20, or upon the alternative verdict which may be given under that Section when the accused is charged under Section 18, it may be unnecessary to refer specifically to the word "maliciously". The function of a summing-up is not to give the jury a general dissertation upon some aspect of the criminal law, but to tell them what are the issues of fact on which they must make up their minds in order to determine whether the accused is guilty of a particular offence. There may, of course, be cases where the accused's awareness of the possible consequences of his act is genuinely in issue. R. v. Cunningham is a good example. But where the evidence for the prosecution, if accepted, shows that the physical act of the accused which caused the injury to another person was a direct assault which any ordinary person would be bound to realise was likely to cause some physical harm to the other person (as, for instance, an assault with a weapon or the boot or violence with the hands) and the defence put forward on behalf of the accused is not that the assault was accidental or that he did not realise that it might cause some physical harm to the victim, but is some other defence such as that he did not do the alleged act or that he did it in self-defence, it is unnecessary to deal specifically in the summing-up with what is meant by the word "maliciously" in the Section. It can only confuse the jury to invite them in the summing-up to consider an improbability not previously put forward and to which no evidence has been directed, to wit - that the accused did not realise what any ordinary person would have realised was a likely consequence of his act, and to tell the jury that the onus lies, not upon the accused to establish, but upon the prosecution to negative that improbability and to go on to talk about presumptions. To a jury who are not jurisprudents that sounds like jargon. In the absence of any evidence that the accused did not realise that it was a possible consequence of his act that some physical harm might be caused to the victim, the prosecution satisfy the relevant onus by proving the commission by the accused of an act which any ordinary person would realise was likely to have that consequence. There is no issue here to which the jury need direct their minds and there is no need to give to them any specific directions about it. In such a case, and these are the commonest of cases under Section 18, the real issues of fact on which the jury have to make up their minds are: (1) Are they satisfied that the accused did the act? (2) If so, are they satisfied that the act caused a wound or other serious physical injury? (3) If the defence of self-defence is raised or there is any evidence to support it, do they think that the accused may have done the act in self-defence? (4) If the answer to (1) and (2) is Yes and to (3), if raised, is No, are they satisfied that when he did the act he intended to cause a wound or other really serious physical injury? If (3), if raised, is answered No and (1) and (2) are answered Yes, the lesser offence under Section 20 is made out; and if (4) is also answered Yes the graver offence under Section 18 is made out. In any case under Section 18 where the physical act of the accused was a direct assault which any ordinary person would have realised was likely to cause some physical harm to the victim and there is no evidence that the accused himself did not realise that it might do so, if those issues, which we have stated, are put fairly and squarely to the jury it is the view of this Court that the summing-up is not open to criticism. There is no need for any general dissertation about the meaning of the word "maliciously". The less said about it in such a case the better. The only remaining issue is whether the present case is one of this kind. The relevant evidence for the prosecution was that of the complainant and the two Police Officers. The complainant, in the early hours of the morning of the 30th September, was returning home, according to his evidence, and was stopped in a street by two men, one of whom was the appellant. They asked him if there was a club anywhere about, and then one of them, not the appellant, snatched a £5 note from the complainant's breast pocket and ran off. The complainant said he chased him without success, returned to the appellant, grasped him by his lapels and demanded to know the whereabouts of his mate. The appellant then (and this was common ground) hit out at the complainant and knocked him down. That was the first assault. Two off-duty Police Officers then saw the appellant, according to their evidence, sitting astride the complainant, and they saw the appellant strike him several violent blows in the face with his fist and pull him to his feet, strike him again in the face, knocking him down and making him virtually unconscious. The appellant was, according to the Police, trying to pull up the complainant again when the Police arrested him. When the appellant was taken to the station, he was found to be concealing a £5 note in his hand. The Judge directed the jury to acquit of robbery with violence, because the evidence showed no violence but a snatching. That left larceny from the person, of which the jury convicted him. As regards the count of wounding, in effect, the learned Judge directed the jury to acquit the appellant of any offence if they accepted that only the first blow, which he admitted, had been struck. He directed them that on the evidence there would be justification in self-defence for that. As regards the blows seen to be struck by the Police, the appellant sitting astride the complainant and raining a series of blows upon his face, lifting him up, casting him down again, the only issues before the jury was whether that happened at all and, if so, whether they were inflicted with intent to do grievous bodily harm. If the jury accepted that it did happen, then clearly any ordinary man would realise that some physical harm would be sustained by the victim, even though he might not have any specific intent to break the skin or amount to serious physical injury. In the view of this Court, this was clearly a case where in relation to the lesser offence of which the appellant was convicted it was quite unnecessary for the learned Judge to give the jury any instructions upon the meaning of the word "maliciously". Another point was raised by Mr. Briggs on behalf of the appellant, namely, that the directions as given by the learned Judge to the jury upon the issue of self-defence were inadequate. In the view of this Court, there is nothing in that contention; and this appeal is accordingly dismissed.

...Revised) LORD JUSTICE DIPLOCK: On the 22nd March 1967 the appellant was arraigned at Inner London Sessions on a charge of bigamy, and in the absence of his counsel, who was late in arriving at the Court, he pleaded guilty to that offence. His counsel when he arrived sought leave of the Deputy Chairman to withdraw that plea, because he wished to advance the defence that at the time of his second marriage he held honestly and reasonably the mistaken belief that a Decree Absolute dissolving his previous marriage had been granted. The learned Deputy Chairman, taking the view that even if that were established it would not amount to a defence, refused to allow the plea of guilty to be withdrawn and, accordingly, the appellant was convicted and sentenced to a conditional discharge. The question of law in this appeal is whether on a charge of bigamy under Section 57 of the Offences Against the Person Act, 1861, a defendant's honest belief upon reasonable grounds that at the time of his second marriage his former marriage had beer dissolved is a good defence to the charge. In R. v. Wheat (1921 2 King's Bench 119) the Court of Criminal Appeal decided that it was not. The learned Deputy Chairman rightly regarded himself as bound by that decision. But we are not. In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration we were to be of opinion that the law had been either misapplied or misunderstood in an earlier decision of this Court or its predecessor the Court of Criminal Appeal we should be entitled to depart from the view as to the law expressed in the earlier decision notwithstanding that the case could not be brought within any of the exceptions laid down in Young v. Bristol Aeroplane Company Limited (1944 King's Bench 718) as justifying the Court of Appeal in refusing to follow one of its own decisions in a civil case (R. v. Taylor 1950 2 King's Bench 368). A fortiori we are bound to give effect to the law as we think it is if the previous decision to the contrary effect is one of which the ratio decidendi conflicts with that of other decisions of this Court or its predecessors of co-ordinate jurisdiction. The offence of bigamy is a statutory offence. Our task is therefore to construe the relevant section of the statute which is in the following terms:- "Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and, being convicted thereof, shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding seven years, and not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour; and any such offence may be dealt with, inquired of, tried, determined, and punished in any county or place in England or Ireland where the offender shall be apprehended or be in custody, in the same manner in all respects as if the offence had been actually committed in that county or place: Provided, that nothing in this section contained shall extend to any second marriage contracted elsewhere than in England or Ireland by any other than a subject of her majesty, or to any person marrying a second time whoso husband or wife shall have been continually absent from such person for the space of seven years then last past, and shall not have been known by such person to be living within that time, or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by the sentence of any court of competent jurisdiction." The enacting words, which are absolute in their terms, set out the three elements in the offence: (a) A married person; (b) going through the form or ceremony of marriage with another person; (c) during the life of his or her spouse. The circumstances referred to in the first two parts of the proviso relate to element (b) and element (c) respectively and are true exceptions, that is to say, but for the proviso they would fall within the enacting words which precede it, but the second two parts which refer to cases where the former marriage has been dissolved or declared void at the time of the second marriage are not exceptions. They subtract nothing from and add nothing to the enacting words, for a person whose former marriage has been dissolved or avoided is no longer a married person and element (a) in the offence is absent. As a matter of legislative history they are survivals from somewhat similar provisions in the original Act of James I (1 James I Chapter 11) which first made bigamy a felony. What is now the third part of the proviso applied then to divorce a mensa et thoro and was a true exception, for that kind of divorce pronounced by the Ecclesiastical Court did not dissolve a marriage; but what is now the fourth even at that date was not an exception from the enacting words for a person whose former marriage had been declared absolutely void by the Ecclesiastical Courts was no longer married. But in 1603, when the jurisdiction of the Ecclesiastical Courts was still in the realm of political controversy and statutory draftsmanship in its infancy, it may well have been prudent to state expressly what the consequences of decrees of the Ecclesiastical Courts should be as respects the newly created felony. In 1861, which was four years after the transfer to the Court for Matrimonial Causes of the former matrimonial jurisdiction of the Ecclesiastical Courts and the grant to that Court of what was then a novel jurisdiction to grant divorce a vinculo, the draftsman of the Offences against the Person Act may have thought it prudent to include in the proviso provisions corresponding to those in the Act of James I and its successor, 9 George IV Chapter 31 Section 22, lest their omission might give rise to the suggestion that the words "being married" in the enacting part of the Section wore intended to cover cases where the former marriage had been dissolved or declared void by a decree of the Court for Matrimonial Causes. At any rate, we cannot find any other plausible reason for the inclusion of these two provisions in the proviso. The present case, however, does not fall within the proviso. The appellant's former marriage had not been dissolved or declared void at the time of the ceremony of his second marriage. The only relevance of the proviso is the light (if any) which it throws upon the proceeding enacting words. They are, as we have already pointed out, absolute in their terms. If they are to be construed literally, a mistaken but honest and reasonable belief by the defendant in a fact which would make his act of going through the second form or ceremony of marriage lawful and innocent, would be no defence. The question, therefore, is: Are they to be construed literally or as subject to the presumption which is usually applied to statutes creating new criminal offences that a crime is not committed if the mind of the person doing the act in question is innocent? This question came before a Court of 14 Judges of the Queen's Bench Division as a Crown Case Reserved in 1889 (R. v. Tolson 23 Queen's Bench Division 168). By a majority of nine to five they held that the presumption did apply, that the offence created by the enacting words was not an absolute offence, but mens rea was an essential ingredient. In R. v. Tolson the fact which the defendant believed, which, had it been true would have made her second marriage lawful and innocent, was that her husband by the former marriage was dead although seven years had not elapsed since last she saw him. She could not bring herself within the first exception of the proviso. She relied upon a mistaken though honest and reasonable belief that element (c) in the enacting words - viz. the continuing life of the first spouse - was absent. It is significant, in view of what was said about this decision in Wheat's case, that the majority reached their decision in spite of and not because of the first exception in the proviso, and the minority were largely influenced in their dissent by its presence there. It is made very clear by Lord Coleridge, Chief Justice, (at pages 201/2) who was at first inclined to dissent, that their decision was based squarely upon the enacting words themselves and was that these, despite the proviso, were to be construed as subject to the general rule applicable to statutes creating serious criminal offences that mens rea is a necessary ingredient in the offence. In Wheat's case the defendant's mistaken belief related to element (a). He claimed to have had at the time of his second marriage ceremony an honest and reasonable belief that his former marriage had been dissolved. The Court of Criminal Appeal, consisting of five Judges, held that this belief, had it been proved, would have been no defence. They sought to distinguish Tolson's case upon the ground that that decision turned upon the presence of the exception relating to seven years absence as indicating that an honest belief in the death of the former spouse before the seven years had elapsed was a defence, which, but for the exception, it would not have been. But this is almost exactly the converse of the reasoning of the Judges in Tolson's case. The Court in Wheat's case also accepted the argument of the Attorney-General that "this exception creates or involves a presumption of death, which, unless rebutted by the prosecution, entitles the accused to an acquittal: in other words the person accused is presumed to believe under such circumstances that the former wife is dead at the time of the second marriage, and therefore has no intention of doing the act forbidden by the statute - namely marrying during the life of the former husband or wife." But this reasoning, with great respect, does not bear analysis. The defendant has no need to rely upon any presumption of death; it is for the prosecution to prove in every case of bigamy that the former spouse was alive at the time of the second marriage. Nor does the proviso depend upon the defendant's belief in the death of the former spouse but upon his lack of knowledge that the former spouse was alive. In the case of a young and healthy spouse who goes abroad there may be no reason whatever for believing that he or she is dead. An honest defendant may freely admit that he believed his former spouse to be alive at the time of the second marriage as long as he did not know her to be so at any time within the previous seven years. This was pointed out in terms by Mr. Justice Cave in Tolson's case (at page 183) and was the very reasoning which persuaded Lord Coleridge, Chief Justice, that the first exception did not qualify the application to the enacting words of the general presumption that mens rea is a necessary ingredient in the offence. Upon this reasoning which, with great respect, not only misinterprets the judgments in Tolson's case but is in itself fallacious, the Court in Wheat's case expressed their opinion that "this decision is not in conflict with the decision of the majority of the Judges in R. v. Tolson but is in accord with the principle of the judgment in R. v. Prince. " We, however, agree with Chief Justice Latham in the Australian case which we are about to cite that these two English decisions of Courts of co-ordinate jurisdiction are in conflict. Tolson's case decides that mens rea is a necessary ingredient of the felony described in the enacting words despite their absolute terms. Wheat's case decides the contrary. R. v. Prince, which was discussed at length in Tolson's case was decided upon another statute which the Court held was intended to punish abduction of a girl without her father's consent - an act which the Court regarded as mala in se; whereas the legislature in 1861 cannot be thought to have regarded the act of marrying for a second time as mala in se after a previous marriage had ceased to subsist. In 1937 the matter came before a High Court of Australia which included Chief Justice Latham and Mr. Justice Dixon, who has earned a world-wide reputation as a common lawyer which is outstanding in the twentieth century. The decisions of the High Court of Australia even when so constituted may be persuasive only - but how persuasive they are. In Thomas v. The King (59 Commonwealth Law Reports 297) the defendant's mistake of fact related to element (a). His former marriage was to a woman who had herself been previously married. At the time of his second marriage he believed honestly and upon reasonable grounds that his first wife's Decree Nisi had not been made absolute at the date when he married her. Had his belief been correct, his first marriage would have been void ab initio not merely voidable; but what is important is that his mistake of fact was as to whether or not the Court had made a decree dissolving the previous marriage of his first wife. All members of the High Court regarded the case as indistinguishable in principle from Wheat's case. The majority (Chief Justice Latham and Mr. Justice Dixon with whom Mr. Justice Rich agreed) considered Wheat's case to be inconsistent with Tolson's case. Chief Justice Latham said so in terms (at page 292). Mr. Justice Dixon after discussing two suggested grounds of distinction says this:-"The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact - the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code." Mr. Justice Starke dissented on the ground that he ought to follow Wheat's case and that a mistake as to whether a marriage has been dissolved is a mistake of law and not of fact. This formed no part of the ratio decidendi in Wheat's case and was disposed of, as we think unanswerably, by Mr. Justice Dixon (at pages 306-308). Mr. Justice Evatt also dissented, but on the broader ground that public policy required that a person who married again during the lifetime of another person who had been his wife did so at his own risk. He did not seek to support this by consideration of the wording of the Victorian Act which was in similar terms to the English one. No member of the Court suggested that there was any relevant distinction between a mistaken belief in a fact which if true would have the legal consequence of making the former marriage void ab initio, and one which would have the legal consequence of avoiding a voidable marriage or of dissolving a valid one. The decision of the majority was that a mistaken belief, held honestly and upon reasonable grounds, in a fact which if true would have had the legal consequence that the defendant was not married at the time of the second marriage ceremony (i.e. that element (a) in the offence was lacking) was a good defence. In R. v. King (1964) 1 Queen's Bench 285) the Court of Criminal Appeal in England followed the decision of the High Court of Australia. The mistake of fact there was that at the time of his former marriage the defendant's own previous marriage to another person had not been dissolved. Had this been so the former marriage would have been void ab initio and his second marriage in respect of which he was charged with bigamy would not have been bigamous. In this respect the case was on all fours with Thomas v. The King. The Court of Criminal Appeal, however, expressed the view not only that their own decision did not conflict with the decision in Wheat's case, but that the Australian High Court themselves felt that Thomas v. The King was clearly distinguishable from Wheat's case. With great respect, this latter view must have been formed per incuriam. We have already referred to the passages in the judgments of Chief Justice Latham and Mr. Justice Dixon which show the contrary. If there is a distinction in principle between Wheat's case and King's case wherein does that distinction lie and how is it to be extracted from the wording of the Section? In King's case the Court approved and followed the direction of the Common Sergeant in Thomson's case (1906 70 Justices of the Peace 6) of which Mr. Justice Avory had said in Wheat's case: "we doubt if it car be supported consistently with our present decision." This, as the Court pointed out in King's case was obiter, but where does the distinction lie? The mistake in both cases was of the same kind: whether or not a Court of competent jurisdiction had made a decree dissolving a marriage. No-one, apart from Mr. Justice Starke, has ever suggested that this is not a mistake of fact. In both cases the fact mistakenly believed to have been true would, if true, have had the legal consequence that at the relevant time for seeing whether element (b) of the offence existed, i.e. the date of the second marriage ceremony, element (a) was absent - i.e. the defendant was not married. The legal consequences differ in one respect only, that in King's case the defendant would never have been married to his former reputed wife, whereas in Wheat's case he would at some time previous to the relevant time have been married to his former wife. But what construction could be placed upon the words of the Section which would result in this distinction between the legal consequences of the supposed fact being relevant to the guilt or innocence of the honest and reasonable believer of the fact? There might perhaps be a plausible argument, based on the second part of the proviso, that the expression "being married" in the enacting words should be construed as "having been married". This would have the effect of making the provisions of the proviso relating to dissolution and declarations of nullity of the previous marriage true exceptions to the enacting words instead of surplusage as they are if "being married" is construed in the present tense, in which grammatically it is. We doubt if in any event it would be permissible to let the tail in the proviso wag the dog in the enacting words. But even if it were the only effect would be that the fact mistakenly believed to have been true in King's case would, if true, have made the second marriage innocent because the defendant did not come within the expression "having been married" in the enacting words, whereas the corresponding fact in Wheat's case would, if true, have made the second marriage innocent because the defendant did come within the exception in the proviso as being a "person who at the time of such second marriage shall have been divorced from the bond of the first marriage".' Once it is accepted, as it has been in King's case, that the offence is not an absolute one and that honest and reasonable belief in a fact affecting the matrimonial status of the defendant which, if true, would make his second marriage lawful and innocent can constitute a defence, there can in our view be no possible ground in justice or in reason for drawing a distinction between facts the result of which would be that he was innocent because he did not come within the enacting words at all, and facts the result of which would be that he was excluded from the enacting words by the proviso. Given that the belief is formed honestly and upon reasonable grounds, there can be no difference on grounds of moral blameworthiness or of public policy between a mistaken belief that a Decree Absolute has been granted as in Wheat's case and one that it has not as in King's. Indeed, it needs little ingenuity to postulate circumstances in which the existence of a Decree Absolute would make the defendant's first purported marriage void ab initio as the absence of a Decree Absolute would have done in King's case and Thomas v. The King. To draw such fine distinctions would we think, in the words of Mr. Justice Dixon, (at page 311 of the report) "lead to consequences which would not only be contrary to principle but which would be discreditable to our system of criminal law". We think that wheat's case was wrongly decided. We agree with the High Court of Australia that it conflicts with Tolson's case. In this respect we respectfully differ from the opinion expressed by the Court of Criminal Appeal in King's case, but our decision is in conformity with the result arrived at in King's case and those parts of the reasoning which led to that result. The prosecution accept that the appellant at the time of the second marriage did honestly believe that his former marriage had been dissolved and that he had reasonable grounds for that belief. This appeal is, accordingly, allowed and the conviction quashed. I should like to say how much we are indebted to Mr. Crowther and to Mr. Walker for the argument in this case, it was of great assistance to us. MR. CROWTEER: My Lord, your Lordship will have noticed that so convinced has one been by the judgment that one has made no further application in this matter. LORD JUSTICE DIPLOCK: Had you made one we should, of course, have granted it.

(Revised) THE LORD CHIEF JUSTICE: In March of last year at West Riding Quarter Sessions, this Appellant pleaded guilty to burglary and also to carrying an imitation firearm with intent to commit burglary. He was sentenced to three years and two years imprisonment consecutive, in other words, five years in all. He now applies for an extension of time and for leave to appeal against sentence. Originally he asked for leave to appeal against conviction also, but Mr. Savill on his behalf before this Court has not continued that application. In the course of argument the extension of time was allowed, and the Court gave leave to appeal against sentence, and treats this as the hearing of the appeal. The facts of this matter, so far as the offence is concerned, are very short. On the evening of 8th January of 1968 this Appellant, together with another man who had been recruited that very day for the purpose, broke into a sub-post office at Letwell in South Yorkshire. It was a crime of a type only too prevalent these days. They wore stocking masks and the Appellant had this imitation pistol with him at the ready. In fact the police were waiting and closed in on them, and thereupon the Appellant thrust the pistol into the face of one of the police officers and pulled the trigger. Then notwithstanding that the police were present both of them made their escape, but the Appellant was picked up in the early hours of the following morning, and the man with him later gave himself up. In a statement made to the police in these proceedings the Appellant said this, "I am sorry about the gun. It was instinct that made me pull the trigger, but I'm thankful it were not a real gun. I was going to get a Luger but I'm glad I did not because the same thing might have happened. Well, it would have done natural because of the fright of seeing the officers coming downstairs". This Appellant is a man of 27 with no less than 15 previous convictions, though it is to be observed that the highest sentence he has got heretofore was one of 18 months. Now if the matter rested there, no one could suggest that there was any ground whatever for interfering with this sentence. Indeed, for the type of crime involved, it was today a lenient sentence. The matter however does not rest there. There was an informer concerned, a man called Oates and that is how it came about the police were on the premises. Later when the Appellant was in prison, Oates and another man were charged with housebreaking, and it was then that the informer, Oates, gave an interview to a reporter, in which he made a number of allegations concerning the police officers involved in the present case, and in particular one police officer who has been throughout the proceedings referred to as "Ken". It is of course well known that it is impossible to rely on the evidence of such a man, and as a result of his reporting to the Press an inquiry has been held, and in the course of that inquiry the informer, Oates, has withdrawn much of what he said. However, it is not without interest to observe that as a result of his allegations he was in fact acquitted, the Crown not offering any evidence against him on the charge of housebreaking for which he had been arrested. The Court has had the advantage of seeing various statements made in the inquiry. It is of course impossible for this Court to say with certainty where the truth lies, but one can say at least this, that this Appellant while Still in prison appears to have been minded on his release to carry out some raid on a post office. It also appears that after his release he was approached by the informer, Oates, and approached with the full knowledge and approval of the police officer who was his contact, who has been referred to as "Ken", and as a result of that various things followed. The police officer was introduced to the Appellant as a top criminal from London called Ken. The police officer's car was used, to use the common expression, to case the joint, and by someone, either the police officer or the informer, this man was supplied with this imitation firearm. It may well be of course that that was done because this Appellant, as he said in his statement, had been minded to take a real firearm, but no one knows what the truth of that is. Finally, there is no doubt that, whether with or without his consent, the police officer's car was used a second time, namely as the supposed get away car, in the raid on the post office. As I have said, no one will perhaps ever know the exact truth, but it certainly seems to this Court, doing the best that they can in the matter, that there is a real possibility here that this Appellant was encouraged by the informer and indeed by the police officer concerned to carry out this raid on the post office. Whether or not he would have done it without that, again no one can say, but there is, as it seems to this Court, a real likelihood that he was encouraged to commit an offence which otherwise he would not have committed. It is in those circumstances that this Court is asked to review this sentence. On that assumption, that he was so encouraged, the Court is quite satisfied that some reduction in sentence is called for. Doing the best they can, bearing in mind not only this possible encouragement but at the same time the fact that the Appellant had been minded to use a real firearm, this Court feels that the greatest reduction that they can make is to make these two sentences concurrent instead of consecutive, in other words, that this man in the circumstances shall serve three years imprisonment. Before leaving this case, the Court would like to say a word about the use which, as the cases coming before the Court reveal, is being made of informers. The Court of course recognises that, disagreeable as it may seem to some people, the police must be able in certain cases to make use of informers, and further - and this is really a corollary -that within certain limits such informers should be protected. At the same time, unless the use made of informers is kept within strict limits, grave injustice may result. In the first place, it is important that the Court of trial should not be misled. A good example of that occurred in the case of Macro and others, again a raid on a sub-post office, which came before this Court on 10th February. There the charge was one of robbery with aggravation, with a man "unknown". In fact, the man "unknown" was an informer who together with the police had warned the victim of what was going to take place, and had in fact gone through the pretence of tying up the victim while the police were concealed upon the premises. Now there the effect was that the appellant in that case pleaded guilty to an offence which had never been committed. If the facts had been known, there could not have been a robbery at all, and accordingly it was for that reason that the Court substituted the only verdict apt on the facts which was open to it, namely a verdict of larceny. There is of course no harm in not revealing the fact that there is an informer, but it is quite another thing to conceal facts which go to the quality of the offence. Secondly, it is vitally important to ensure so far as possible that the informer does not create an offence, that is to say, incite others to commit an offence which those others would not otherwise have committed. It is one thing for the police to make use of information concerning an offence that is already laid on. In such a case the police are clearly entitled, indeed it is their duty, to mitigate the consequences of the proposed offence, for example, to protect the proposed victim, and to that end it may be perfectly proper for them to encourage the informer to take part in the offence or indeed for a police officer himself to do so. But it is quite another thing, and something of which this Court thoroughly disapproves, to use an informer to encourage another to commit an offence or indeed an offence of a more serious character, which he would not otherwise commit, still more so if the police themselves take part in carrying it out. In the result, this appeal is allowed and the sentence reduced to one of three years.

(Revised) LORD JUSTICE EDMUND DAVIES: On the 24th September of last year at the Middlesex Sessions before Judge Ranking (sitting as the Deputy Chairman) George Andrew Bonner, Anthony Stuart Town, William Anderson and Michael Barry Town were all convicted of theft. Anderson and Michael Town were sentenced to nine months imprisonment suspended for two years, while Bonner was sentenced outright to a term of nine months. Some days later before the same Court Anthony Town was in his turn sentenced to nine months suspended for two years. Bonner declined to be legally represented, but we are told that he discharged his own defence with considerable competence, but not with success. All four now appeal against conviction on a certificate of the Deputy Chairman, and he has stated the question to be decided in these concise terms: "Whether, having regard to decided cases and the provisions of the Theft Act 1968, the jury was misdirected on the law relating to the theft by a partner of partnership property". In addition, Bonner applies for leave to appeal against sentence; but that application does not need to be considered. Bonner also seeks leave to appeal against conviction on the ground that the verdict was unsafe or unsatisfactory. We have come to the conclusion that that application is well-founded and that in itself entitles him to be acquitted of this offence: and the same is true of his three co-accused. The facts which gave rise to this complicated trial were that on the 16th May last year Bonner and the other three appellants called at the house of a Mr. Webb. Putting it quite neutrally for the moment, Bonner and Webb were business associates. The defence was, in fact, that they were partners and, therefore, co-owners of all the property with which the trial was concerned. Having called with a van at Webb's house in the afternoon at a time when Webb was out, they broke the lock of a garage and splintered the door and, having gained access that way, they loaded some metal from inside the garage on to the van and Anthony Town and Anderson drove it away. The prosecution said that they were stealing the metal: Anderson and Anthony Town and Michael Town claimed they were moving it for Bonner, who they thought had a right to do what he had asked them to do. Bonner's defence was that he honestly thought he had a right to take the lead as it was partnership property owned by himself and Webb and, in any event, he did not intend to deprive Webb of it permanently. Webb's case at first was that there was no partnership at all, and then that it was not what he called "a true partnership". During his evidence he specifically denied that he had ever applied for registration in the Business Names Register of himself and Bonner as partners. But this Court has been furnished with a document, which unhappily was not before the lower Court. It is a certified copy of an application made on the 8th March 1966 for registration by a firm, and the business name is "J. Webb, Excavation & Demolition Co.", the partners are described as "Joseph Webb" and "George Andrew Bonner", and it was signed by each of them. Bonner gave evidence that he and Webb had worked together on and off as equal partners since 1963 as demolition contractors at various sites. One such period began in October 1968, and he said that they agreed that each would take £25 a week from the profits. Webb had a sample billhead printed which was produced at the trial, which described the two men (he and Bonner) as "joint directors". Bonner said that the partnership income was put into Webb's account because he (Bonner) did not have one and he trusted Webb; but he complained that Webb nevertheless did not pay him (Bonner) the one-half of the profits to which he was entitled. Bonner asserted that they owned five vehicles jointly. For one job Webb put in a tender of only £5, but Bonner later put in a tender for £60, which was accepted after Webb had sent in a letter reading: "We wish to confirm Mr. Bonner's quotation of £60". It appeared from the evidence that there had been a number of disputes between the two men. In the early days of May Bonner asked for a "square-up", but Webb told him there were no profits to share and added: "You will get your wack out of the lorries when they have been sold". Bonner, however, then indicated he was ending the partnership, and drove off in one of the lorries, which he regarded as his own. But a few days later (on the 10th or 11th May) Webb retrieved that lorry by driving it out of a tar park where Bonner had left it. An astonishing incident occurred shortly thereafter. On the 16th May a Police Officer called on Bonner because Webb had alleged that Bonner was driving the lorry on the 20th March when it was untaxed; but it appeared that, as Webb knew perfectly well, on that day it had been driven by someone else, whose particulars Bonner was able to give to the Police. Bonner said that he took the lead in the garage because it was partnership property, it having been obtained during their joint demolition of a number of properties. He said he thought he had a right to it: nevertheless he did not wish to keep it, he only wished to hold it as a kind of security until Webb paid him what he (Bonner) claimed was due out of the partnership profits. In view of Webb's denial of a partnership, a whole series of witnesses were called to say that they had always regarded these two men as working in a partnership. But nevertheless Webb went into the box and said they had never had more than what he called a semi-partnership and that Bonner was never more than a glorified foreman whom Webb had sacked about six weeks before the alleged offence. He denied the story which had been put to him in cross-examination by Bonner, and asserted (a) that Bonner had no right in either the vehicles or the metal; and (b) that he had never been associated with Webb as a true partner. As to the taking of the metal, Webb gave evidence that he arrived home on the 16th May and saw this van outside his house and a larger van in his drive, the four men in the act of taking the lead out of the garage and putting it into the larger van. He spoke of the breaking of the lock and the splintering of the garage door and someone saying "There he is" or "He is here". Webb said he told the men to put the metal back or he would call the Police, but they just drove off. He was hanging on to the vehicle for a while, but he was pulled away from it by Bonner. It was common ground that the metal was taken in daylight, that the garage could be seen from the road, that the van-driver did not attempt to dodge down quiet side streets, and that the load of metal was such that the van could not be driven very fast. If theft this was, it was indeed a very odd kind of theft. Bonner gave evidence that when Webb arrived and asked "What are you doing?" he replied "Minding my own business". Upon Webb saying "It's my metal" Bonner said "I think it is mine as well", and Bonner then told Anthony Town to drive home while he (Bonner) stayed to sort the matter out. He had to pull Webb off the van, and Webb thereupon became, as he put it, "like a whining dog", saying "You know you only have got to ask and you will get what you want ... You know you could have had this metal if you had asked for it". Part of that evidence was denied by Webb when he gave testimony. Michael Town gave evidence supporting what Bonner had said, and added that he had believed that Bonner was entitled to do that which he (Town) was assisting him in doing. Anderson and Anthony Town testified that Bonner had employed them to pick up the metal from Wembley, and they had no reason to doubt Bonner's entitlement to take the metal away. When Webb arrived they were not close enough to hear the dispute, Bonner told them to drive off, and when Webb intervened Anthony Town said "If you have something to sort out, do it with George" (i.e. Bonner); and that is exactly what they told the Police when they were first stopped. Later Bonner and Michael Town, quite independently of each other, called at a Police Station and told the Officers substantially what they later said in evidence. Detective Constable Hammond gave evidence that he saw all the appellants together (except for Michael Town), he told them that Webb had accused them of theft and Bonner said "O.K., if that's the case, I want to charge him. I told these two to take it. It's mine." Anderson replied "George told us it was his and that we'd be O.K." Anthony Town said "We were told it would be all right." The Officer said "If you thought that things would be all right, why did you drive away?", and Anthony Town said "We knew that if the Police came there would be trouble": and so there would. Mr. Wright, who has said all that can be said by the Crown in discharging its duty to the Court, has conceded the reply of Anthony Town was quite equivocal. It was not challenged that when Bonner was charged he said "This property is jointly owned by myself and Mr. Webb and as a result of Mr. Webb's action of stealing a lorry which I owned. I took the lead in retribution." Mr. Wright concedes that that again is an equivocal remark. Such in outline is the story of a case which was summed-up at considerable length and with the greatest possible care by the Deputy Chairman. It resulted in the conviction of all four men of theft, contrary to Section 1(1) of the Theft Act 1968. My Brothers and I had, independently and before we conferred about this matter, come to the conclusion that, unless the Crown could persuade us that there were cogent reasons to come to a different conclusion, the combination of circumstances in this case is such that ex facie the verdict of the jury was unsafe and unsatisfactory. It may be that Bonner is a guilty man: we have no means of telling that. But the business of this Court is to say whether, Bonner having submitted that the verdict of guilty was in all the circumstances unsafe and unsatisfactory, we think that his complaint is well-founded. We think that it is. And if he is to be discharged, it follows that so must the three other men. In our judgment, all four appeals must be allowed. However, as (to the best of our belief) this is the first time that the position of partners has been considered since the passing of the Theft Act, 1968, and out of respect to Mr. Inglis-Jones for his most attractive submissions, we think it right to deal with the legal point which led to the learned Judge certifying the case as one fit for appeal. Mr. Inglis-Jones has submitted that, even if (contrary to his basic submission) it would be going too far to say that a partner can never steal partnership property, yet, in the circumstances of this particular case, the offence of theft has not been made out. He has taken us back a long way in legal history. He has referred us to Morgan v. Marquis (1653 9 Exchequer 145) where Baron Parke dealt with the capacity of one tenant in common to maintain an action in conversion against his companions, and said (at page 147) that such an action was not maintainable unless there has been destruction of the particular chattel or something equivalent to its destruction. We have also been referred to the decision of Baron Parke in Farrer v. Beswick (1836 Meeson and Welsby's Reports 682) where (at page 688) he said: " I have always understood, until the doubt was raised in Barton v. Williams, that one joint-tenant or tenant in common of a chattel could not be guilty of a conversion by a sale of that chattel, unless it were sold in such a manner as to deprive his partner of his interest in it. A sale in market overt would have that effect." Mr. Inglis-Jones has accordingly submitted that in the circumstances of this case a mere taking away of partnership property, even with the intention of keeping the other partner permanently out of possession of it, would not per se suffice to amount to theft. There would have to be something like destruction of the metal or its sale in market overt, which would have the effect (provided there was innocence in the buyer) of transferring a good title to him and so defeating the title of the deprived partner. Defending counsel summarised the matter by submitting that for there to be an "appropriation" within the Theft Act 1968 there must be a "conversion" of the property by one or other of the foregoing methods, neither of which was resorted to here. Therefore, so it is submitted, there was no theft. Rejecting that submission, Judge Ranking directed the jury in these terms: "... even if you are satisfied that there was a full partnership between Webb and Bonner, a partner has no right to take any partnership property with the intention of permanently depriving the other of his share. Therefore, even if Bonner was a partner of Webb, if he took that lead (which was partnership property) intending to deprive Webb permanently of his share and, when he did it, he knew perfectly well that he had no legal right to take it, then he is guilty of theft; he is guilty of the theft of the whole property, and not just guilty of the theft of Webb's share, because the whole of it was partnership property and it had not been divided ... and if one partner takes it he is guilty of stealing the whole of it". Was this a misdirection? This Court is clearly of the opinion that it was not. Sections 1, 3 and 5 of the Theft Act, 1968, are here relevant. Section 1(1) reads: "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and 'theft' and 'steal' shall be construed accordingly." Section 3 defines the word "appropriates" in these terms: "Any assumption by a person of the rights of an owner amounts to an appropriation ...". Section 5 defines the phrase, "belonging to another", used in Section 1. Mr. Inglis-Jones has boldly submitted that, since the basic requirement of theft is the appropriation of property belonging to another, there can be no such appropriation by one co-owner of property which is the subject matter of the co-ownership or partnership; and that there can be no "assumption of the rights of an owner" in a case like the present, where one is dealing with (as Bonner claims) property belonging to a partnership. The whole object of the Theft Act was to get away from the technicalities and subtleties of the old law. Mr. Inglis-Jones has not repeated before us an interesting submission which he made below; but, since we are dealing with this topic, we think that it might be helpful if we resurrect it and attempt to dispose of it now. His submission below went something on these lines: The Larceny Act 1916 had a special provision (Section 40(4)) that: "If any person who is a member of any co-partnership or is one of two or more beneficial owners of any property, steals or embezzles any such property of or belonging to such co-partnership or to such beneficial owners he shall be liable to be dealt with, tried, and punished as if he had not been or was not a member of such co-partnership or one of such beneficial owners." The parent of that provision was the Larceny Ac' 1868, a one-section Statute, and in R. v. Jesse Smith (187 1 Crown Cases Reserved 266) Chief Justice Bovill said, referring to the Larceny Act 1861: "At the time that Act (24 & 25 Vict. c. 96) was passed theft by a partner of the goods of the firm did not fall within the criminal law, either common or statute. This defect was supplied by 31 & 32 Vict. c. 116, which, after reciting that ' it is expedient to provide for the better security of the property of co-partnerships and other joint beneficial owners against offences by part owners thereof, and further to amend the law as to embezzlement,' proceeds to enact, by the first section, that if a partner, or one of two or more beneficial owners, shall steal, etc., any property of such co-partnership or such joint beneficial owners, 'every such person shall be liable to be dealt with, tried, convicted, and punished for the same as if such person had not been or was not a member of such co-partnership, or one of such beneficial owners'." Mr. Inglis-Jones submitted that, there having been a special provision in the Larceny Act 1916, following upon the earlier Act, dealing with the position of a partner wrongfully treating partnership property, and there being no repetition of that statutory provision in the Theft Act, the inference is that the law has been changed and that it is no longer theft for a partner to deprive a co-partner of any of the partnership property even if it be done dishonestly and permanently. I said a little earlier that the object of the Theft Act was to get rid of the subtleties and, indeed, in many cases the absurd anomalies of the pre-existing law. The view of this Court is that in relation to partnership property the provisions in the Theft Act have the following result: provided there is the basic ingredients of dishonesty, provided there be no question of there being a claim of right made in good faith, provided there be an intent permanently to deprive, one partner can commit theft of partnership property just as much as one person can commit the theft of the property of another to whom he is a complete stranger. Early though these days are, this matter has not gone without comment by learned writers. Professor Smith in his valuable work on the Theft Act expresses his own view quite clearly in paragraph 80 under the heading "Co-owners and partners" in this way: "D and P are co-owners of a car. D sells the car without P's consent. Since P has a proprietary right in the car, it belongs to him under Section 5(1). The position is precisely the same where a partner appropriates the partnership property." In the joint work of Professor Smith and Professor Hogan, the matter is thus dealt with (Smith and Hogan's 'Criminal Law', 2nd Edition, 361): "... D and P may be joint owners of property. Obviously, there is no reason in principle why D should not be treated as a thief if he dishonestly appropriates P's share, and he is so treated under the Theft Act". We thus have no doubt that there may be an "appropriation" by a partner within the meaning of the Act, and that in a proper case there is nothing in law to prevent his being convicted of the theft of partnership property. But this excursus is of an academic kind in the present case, for we have already indicated our view regarding the unsatisfactory and unsafe nature of the verdicts returned against each of these accused. In these circumstances, all four appeals are allowed.

THE LORD CHIEF JUSTICE: Mr. Justice Ackner will give the Judgment of the Court. MR. JUSTICE ACKNER: On the 9th June 1971 Mrs. Clarke, a lady of 58 years, was tried at Leicester City Quarter Sessions for what is commonly known as shoplifting. There was nothing out of the ordinary either in relation to the facts of her case or in relation to the nature of her defence. The only unusual feature was the course which the learned Assistant Recorder unhappily decided to take after the conclusion of the evidence. The facts are simple. It was common ground that on the 2nd March 1971 Mrs. Clarke went to the International Stores supermarket at Leicester. She there shopped with the aid of a wire basket provided by the store to enable her, not only to carry the goods of her choice, but also to keep them separate and apart from any other goods and thus enable the cashier readily to calculate the cost of the goods she had purchased from the Store. While she was in the store Mrs. Clarke selected various items, three of which consisted of a pound of butter, a jar of coffee and a jar of mincemeat. At some stage before she went to the check-out point Mrs. Clarke transferred those goods out of the wire basket and into her own bag so that when she presented her basket those three items were no longer in the wire basket and were not therefore paid for. Understandably enough it was alleged that these goods were secreted into Mrs. Clarke's own shopping bag with the object of stealing them and taking them out of the store without paying for them. Mrs. Clarke's defence was that she had no intention of stealing these goods. She had not been feeling well on the morning in question nor for quite some time. She suffers from sugar diabetes. In the previous year she had gone down with flu and on the Friday previous to that occurrence her husband had broken his collar-bone. He had to look after her and was in fact, because of his own condition, off work for several months. What with one thing and another she had become very depressed. On a number of occasions she had been very forgetful, for example she had put sugar in the fridge instead of in the cupboard and the sweeping brush in the dustbin and then put the dirt where the brush should have been put. In her own words "everything seemed to get on top of me". On the morning in question she woke up with a very bad head which persisted despite her taking her pills. Her husband rang up about 11 a.m. to say he would be home for lunch late. She put their meal in the oven on a low flame and went out to fetch the groceries. She had no recollection of putting these three items into her shopping bag and as for the jar of mincemeat neither she nor her husband ever ate this. In short her defence was that she had no intention to steal these articles, but in a moment of absent-mindedness had put them in her own shopping bag. Had the matter rested there, there would have been no complications and the Assistant Recorder would no doubt have directed the jury to consider her explanation and ask themselves whether they were satisfied beyond reasonable doubt that she had the necessary intent to sustain the charge. However, to support the validity of her explanation medical evidence was called. These witnesses were her general practitioner and a consultant psychiatrist. These two gentlemen both spoke to the fact that she was suffering from depression, which one of them accepted to be a minor mental illness. The general practitioner described the symptoms. The patient feels a lack of energy - he finds it difficult to concentrate - he may be short tempered or absent-minded. The psychiatrist stated that it can produce states of absent-mindedness in which the patient would do things he would not normally do in periods of "confusion and memory lapses". All this evidence was entirely consistent with Mrs. Clarke's story. Unfortunately the medical witnesses were pressed to, what it seems to us, an unreasonable degree to explain the workings of this particular illness. The psychiatrist stated that what happens in these cases is "that there is a patchy state of affairs, that the consciousness, if you like, goes off at times and comes on again, changing every few minutes and not in proper control of the patient." The effect of this evidence upon the Assistant Recorder was to convince him that the defence was in truth a defence of "not guilty by reason of insanity" under the McNaughton rules. He was undoubtedly influenced to this decision by the evidence that the depression was an illness which he translated as meaning also a disease and by the fact that on the medical evidence, as he understood it, a possible explanation was that there had been a total lack of consciousness at the moment when the offence was committed. In order to sustain a defence under the McNaughton rules it is necessary to show that the party accused was labouring under such a defect of reason from the disease of the mind as not to know the nature and quality of the act he was doing or if he did know, that he did not know that what he was doing was wrong. It may be that on the evidence in this case the Assistant Recorder was entitled to the view the appellant suffered from a disease of the mind but we express no concluded view on that. However in our judgment the evidence fell very far short either of showing that she suffered from a defect of reason or that the consequences of that defect in reason, if any, were that she was unable to know the nature and quality of the act she was doing. The McNaughton. rules relate to accused persons who by reason of a disease of the mind are deprived of the power of apply reasoning. They do not/and never have applied to those who retain the power of reasoning but who in moments of confusion or absent-mindedness fail to use their powers to the full. The picture painted by the evidence was wholly consistent with this being a woman who retained her ordinary powers of reason but who was momentarily absent minded or confused and acted as she did by failing to concentrate properly on what she was doing and by failing adequately to use her mental powers. Because the Assistant Recorder ruled that the defence put forward had to be put forward as a defence of insanity, although the medical evidence was to the effect that it was absurd to call anyone in Mrs. Clarke's condition insane, defending counsel felt constrained to advise his client to alter her plea from not guilty to guilty so as to avoid the disastrous consequences of her defence, as wrongly defined by the Assistant Recorder, succeeding. Thus the appellant in this case ultimately pleaded guilty solely by reason of the Assistant Recorder's ruling. Since in the view of this Court the Assistant Recorder misstated the law this Court has jurisdiction to quash the conviction - see R v. Alexander 7 Criminal Appeal Reports, page 110. The conviction is accordingly quashed.

MR. JUSTICE CUSACK: On 26th May, 1971, this Appellant, Andrew Collis-Smith, was convicted at Warwickshire Quarter Sessions of an offence under s. 15(1) of the Theft Act, 1968. It is of importance, for reasons that will appear later, to have regard to the wording of the count in the indictment upon which he was convicted. The count in the indictment reads as follows: he was charged with "obtaining property by deception contrary to Section 15(1) of the Theft Act 1968 for that you on the 24th February 1971, in the County of Warwick dishonestly obtained from William Arthur Snell 6 gallons of petrol with the intention of permanently depriving William Arthur Snell of the said petrol, by deception, namely false oral representation that you, Andrew David Collis-Smith, was authorised to draw petrol for your private motor car on the account of your employer, James Paper Sacks Limited." The facts of the matter were that on 24th February the Appellant drove his motor car into the forecourt of the Orchard Garage at Bedworth, which was owned by the Mr. Snell referred to in the indictment, and his son, and he asked the petrol pump attendant for some petrol. The attendant was a Mrs. Donoghue, and he asked for six gallons of petrol. According to the evidence as it emerged in the case, she put that petrol into his car and she then asked if he was paying for it. The order of events ig of importance. When she asked if he was paying for it, he said it was to be booked to his firm, as he had the use of the car for business. He then went into the office, followed by another attendant, whom he told the petrol was for James Paper Sacks Limited, and she duly entered it on the file containing the account of that particular company. In addition, he told her to book the petrol down to a mini-bus, to which he gave the reference number, which belonged to the company, and that was done. He now appeals against conviction, the substantial point at issue being set out in the Notice of Appeal and argued in this form. It can be summarised in this way, that the point at issue was this: that on the facts as they appear in this particular case, no false representation was made until after the petrol had been obtained. A submission to that effect was made to the learned Judge at the time, but rejected by him; it is now submitted that he ought to have acceeded to that submission and to have withdrawn the case from the jury. In that situation, it is necessary to look in a little more detail at the wording of Section 15 of the Theft Act. The first subsection reads as follows: "A person who by any deception dishonestly obtains property belonging to another with the intention of permanently depriving the other of it shall on conviction ..." be liable to certain punishment. It appears from that subsection that the order of events, if a conviction is to be obtained, is that there should be the deception, which operated upon the mind of the person to whom it was directed, and that by reason of that deception the obtaining took place. The Act contains its own definition of the word "obtaining", which is to be found in subsection (2) of Section 15. That reads as follows: "For the purposes of this Section, a person is to be treated as obtaining property if he obtains ownership, possession or control.." I need not read further of that definition, because it is of no application to this ease, but it appears to this Court that those words "ownership, possession or control" must clearly show alternatives. It has been submitted in argument on behalf of the Crown that there may be a transaction as it were in two stages, where possession was obtained, and then the deception made, and then ownership obtained by reason of that deception. The Court thinks that, certainly as regards this case, that introduces an unnecessary complexity, and an unacceptable complexity, into the straightforward definition to be found in subsection (2). The real point at issue at that time was the petrol obtained, and once that moment was established, it falls to consideration whether that moment was preceded by or followed by the deception. The Court takes the view that as the evidence emerged in this case - leaving aside altogether the question of ownership, which might involve difficult points under the Sale of Goods Act -possession and control must certainly have been obtained at the time the petrol was put in the tank. If that be the case, neither possession nor control took place after the moment of the deception - the deception came later; and for that reason, the obtaining was obtained before the deception was made. It is perfectly true that if this charge had been laid - even under this Section - in a different form, something to the effect that there was an implied representation made that the petrol would be paid for by the buyer, or an implied representation that it would be paid for at all, and the putting of the petrol in the tank followed that, the situation might be quite different; and it is therefore desirable to emphasise that the Court is only deciding this case on the charge as it was drafted in this case, and on the evidence as it emerged in this case. Furthermore, it should be said that if he had been charged under Section 16 of the Act - that is, obtaining pecuniary advantage by deception - it appears to the Court (and indeed, I think it is conceded by the Appellant's Counsel) that he would have had no defence to that indictment. In that respect, he has probably been fortunate. But as the matter stands, the Court takes the view that the offence with which he was charged - namely, the offence under Section 15(1) -was not proved, having regard to the definition contained in Section 15(2) and the evidence as it emerged at the trial. It is also desirable to emphasise that of course the Court in the present case is dealing with a particular situation, where petrol has been put into the tank of a vehicle, where for practical purposes it would be extremely difficult to recover it once it had got into the tank, and a decision taken in this case can have no direct bearing on different situations such as might arise if someone was shopping in a shop and goods were transferred to a shopping basket and later on that person was stopped before the person left the shop. The Court does not desire to deal with that sort of situation with any precision, and only desires to emphasise that this case is not concerned with it. But as the matter turns out, for the reasons I have indicated, this conviction cannot be upheld, and accordingly will be quashed.

THE LORD CHIEF JUSTICE: The Judgment of the Court which I am about to read was prepared by Lord Justice Widgery: These appellants were convicted of perjury at the Manchester Crown Court on the 18th May 1970 and each was granted a conditional discharge. They now appeal against their convictions by leave of the single Judge. On the 6th April 1969 a fight took place in a Salford public house between one Wright and one Mulligan with the result that Wright was charged with wounding Mulligan. Each of the present appellants gave statements to the police and they were the principal prosecution witnesses at Wright's trial. Elaine Taylor is 19 and Linda Hudson is 17. Wright's trial took place on the 4th August 1969 but when called to give evidence the appellants failed to identify Wright as Mulligan's assailant. Taylor said she knew no one called Jimmy Wright, and Hudson said that the only Wright she knew was not the man in the dock. Wright, was accordingly acquitted and, in due course, the appellants were charged with perjury. At their trial they admitted that the evidence which they had given was false but set up the defence of duress. The basis of the defence was that, shortly after the fight between Wright and Mulligan, Hudson had been approached by a group of men including one Farrell who had a reputation for violence and was warned that if she "told on Wright in court" they would get her and cut her up. Hudson passed this warning to Taylor who said that she had also been warned by other girls to be careful or she would be hurt. The appellants said in evidence that in consequence of these threats they were frightened and decided to tell lies in court in order to avoid the consequences which might follow if they testified against Wright. This resolve was strengthened when they arrived at Court for Wright's trial and saw that Farrell was in the gallery. The learned Recorder directed the jury as a matter of law that the defence of duress was not open to the Appellants in these circumstances. He said: "In my direction to you which you have to obey I tell you that duress can only arise when there is a threat made of death or serious personal injury and that threat must be a present immediate threat". Later he continued: "Assuming everything in favour of these two girls .......assuming that Farrell did make this threat to Hudson ....... assuming that that information was passed on by Hudson to Taylor and assuming that the girls believed it; assuming in favour of Elaine Taylor and Linda Hudson that Elaine Taylor was approached on various occasions by young women who said to her "Be careful and watch it" ... assuming all that to be 100% in their favour I direct you as a matter of law that that does not amount to duress. "These girls may very well have thought that if they did not tell lies something very unpleasant might happen to them in the future, but that is not a present immediate threat capable of being then and there carried out because when they told lies they were in a court of law with the Recorder of Salford there for protection and with the police there in court and, Members of the Jury, I direct you that that does not amount to duress". It is now submitted that this was a misdirection in law and that the case should have been left to the jury to determine, as a fact, whether the appellants had acted under duress. We have been referred to a large number of authorities and to the views of writers of text books. Despite the concern expressed in Stephen's "History of the Criminal Law in England" (Vol. 2. p.107) that it would be "a much greater misfortune for society at large if criminals could confer impunity upon their agents by threatening them with death or violence if they refused to execute their commands" it is clearly established that duress provides a defence in all offences including perjury (except possibly treason or murder as a principal) if the will of the accused has been overborne by threats of death or serious personal injury so that the commission of the alleged offence was no longer the voluntary act of the accused. This appeal raises two main questions; first, as to the nature of the necessary threat and, in particular, whether it must be "present and immediate"; secondly, as to the extent to which a right to plead duress may be lost if the accused has failed to take steps to remove the threat as, for example, by seeking police protection. It is essential to the defence of duress that the threat shall be effective at the moment when the crime is committed. The threat must be a 'present' threat in the sense that it is effective to neutralise the will of the accused at that time. Hence an accused who joins a rebellion under the compulsion of threats cannot plead duress if he remains with the rebels after the threats have lost their effect and his own will has had a chance to re-assert itself (McCrowther's Case (1746) Foster's Crown Cases 13: A-G v. Whelan (1934) I.R.518). Similarly a threat of future violence may be so remote as to be insufficient to overpower the will at the moment when the offence was committed, or the accused may have elected to commit the offence in order to rid himself of a threat hanging over him and not because he was driven to act by immediate and unavoidable pressure. In none of these cases is the defence of duress available because a person cannot justify the commission of a crime merely to secure his own peace of mind. When, however, there is no opportunity for delaying tactics, and the person threatened must make up his mind whether he is to commit the criminal act or not, the existence at that moment of threats sufficient to destroy his will ought to provide him with a defence even though the threatened injury may not follow instantly, but after an interval. This principle is illustrated by SUBRAMANIAM v. Public Prosecutor (1956) 1 WLR 965, when the Appellant was charged in Malaya with unlawful possession of ammunition and was held by the Privy Council to have a defence of duress, fit to go to the jury, on his plea that he had been compelled by terrorists to accept the ammunition and feared for his safety if the terrorists returned. In the present case the threats of Farrell were likely to be no less compelling, because their execution could not be effected in the court room, if they could be carried out in the streets of Salford the same night. Insofar, therefore, as the Recorder ruled as a matter of law that the threats were not sufficiently present and immediate to support the defence of duress we think that he was in error. He should have left the jury to decide whether the threats had overborne the will of the appellants at the time when they gave the false evidence. Mr. Franks, however, contends that the Recorder's ruling can be supported on another ground, namely, that the Appellants should have taken steps to neutralise the threats by seeking police protection either when they came to court to give evidence, or beforehand. He submits on grounds of public policy that an accused should not be able to plead duress if he had the opportunity to ask for protection from the police before committing the offence and failed to do so. The argument does not distinguish cases in which the police would be able to provide effective protection, from those when they would not, and it would, in effect, restrict the defence of duress to cases where the person threatened had been kept in custody by the maker of the threats, or where the time interval between the making of the threats and the commission of the offence had made recourse to the police impossible. We recognise the need to keep the defence of duress within reasonable bounds but cannot accept so severe a restriction upon it. The duty, of the person threatened, to take steps to remove the threat does not seem to have arisen in an English case but in a full review of the defence of duress in the Supreme Court of Victoria (R. v. Harley & Murray (1967) V.R. 526), a condition of raising the defence was said to be that the accused "had no means, with safety to himself, of preventing the execution of the threat". In the opinion of this court it is always open to the Crown to prove that the accused failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective, and that upon this being established the threat in question can no longer be relied upon by the defence. In deciding whether such an opportunity was reasonably open to the accused the jury should have regard to his age and circumstances, and to any risks to him which may be involved in the course of action relied upon. In our judgement the defence of duress should have been left to the jury in the present case, as should any issue raised by the Crown and arising out of the Appellants failure to seek police protection. The appeals will, therefore, be allowed and the convictions quashed. (On the application of Counsel for the Prosecution, the Court certified that a point of law of general public importance is involved in the decision to allow the appeal, viz: "Whether the Recorder was right in- directing the Jury that even accepting the defence evidence, duress could afford no defence." The Court further granted leave to appeal to the House of Lords. The Court also granted legal aid, solicitors and two Counsel, to the Defendants for the purposes of representation in the House of Lords.

(R E V I S E D) LORD JUSTICE STEPHENSON: This Appellant, Kenneth Joseph Roberts, was convicted on 23rd June last at Cheshire Quarter Sessions by a jury of an assault occasioning actual bodily harm, and he was fined by the Chairman 550. He was tried on an indictment alleging first of all that he indecently assaulted a young woman of 21; he was acquitted on that charge, but convicted of the assault occasioning actual bodily harm to her. He appeals to this Court by leave of the single Judge, who pointed out that what was involved here was really a point of law, on which no leave was necessary; and the point of law relates to a direction given by the learned Judge to the jury who convicted him of this assault. The jury had to decide what evidence to accept from the girl herself, and from the Appellant. They accepted some police evidence, and the evidence of a witness or witnesses who had seen the girl immediately after the alleged assault. There was no other evidence before it. The girl's story was that on the evening of 1st May she went to a base camp for troops in Lancashire, being at that time engaged to be married to an American serviceman who had gone to Vietnam. She was friendly with many of the people at that American base, and from that base she went on to a party where she met the Appellant, for the first time. She left that party at about three o'clock in the morning, having agreed to travel with the Appellant, whom she had never met before, in his car to what he said was another party, in Warrington. After they had driven out of Warrington in the direction of Liverpool. she asked the Appellant where the party was, and he said that they were going to Runcorn. They took a curious route to Runcorn, and eventually, she said, they stopped on what seemed like a big cinder track. The time by then was apparently about four a.m. Then, said the complainant, "He just jumped on me. He put his hands up my clothes and tried to take my tights off. I started to fight him off but the door of the car was locked and I couldn't find the catch. Suddenly he grabbed me and then he drove off and I started to cry and asked him to take me home. He told me to take my clothes off and if I didn't take my clothes off he would let me walk home, so I asked him to let me do that. He said if he did he would beat me up before he let me go. He said that he had done this before and had got away with it and he started to pull my coat off. He was using foul language". And then she said she told him, "I am not like this", and he said something like, "You are all like that". Then he drove on. "Again," said the girl, "he tried to get my coat off so I got hold of my handbag and I jumped out of the car. When I opened the door he said something and revved the car up and I jumped out. The next thing I remember he was backing towards me and so I ran to the nearest house. He backed and shouted and then he drove off", and then she remembered being in the lady's house. She said she was taken to hospital, she was treated for some concussion and for some grazing, and was detained in hospital for three days. When she was cross-examined, she said, "I was fighting for my life to get him off. He had hold of me while he was driving. I probably struck him when he was trying to drag my coat off, although I didn't strike him in the face. He was travelling at about 45 miles an hour when I jumped out of the car". At another point in her evidence, she said that actually before she had jumped out of the car he started to take her coat off – "That was the last straw. I opened the door and jumped". A woman was called from the house which she knocked up, to describe her distressed condition. There, of course, the jury was faced with the fact, and it was not disputed when it came to the evidence of the Appellant, that this girl, by no means an inexperienced girl, of 21 years of age, had for some reason or other jumped out of a moving car, and went running, shouting for help, to a house, in a very distressed condition. The Appellant, when seen by the police, and apparently seen by the police in connection with a possible charge far more serious than that for which he appeared at Sessions - a charge of rape, or attempted rape - told them, "It's not like you say, all of it. She was game and led me on. Then she changed her mind and stopped. I was angry but so would you. I drove off. When she jumped out I wasn't going very fast". When he came to give his evidence, his evidence was as consistent with what he said to the police, as was the evidence of the complaining girl, and what she said to the police. He described how the girl had made advances to him - not the other way round - and how she had moved his hand away, and so on, and how they had a bit of an argument about her first of all making advances to him and then changing her mind, and he said, "I called her a cow. She hit me and I got hold of her arms and she was shouting and bawling. I drove along about two miles and suddenly she opened the door and flew out. I was going to take her home. I stopped the car about 15 yards further on. I was going very slowly because of the argument" - that means, I think, when she flew out of the car -- "If it was more than 20, it was very little more. I reversed back and I dropped the window and said, 'don't be daft'." There was a certain amount of evidence that this girl had been drinking, and indeed she freely, I think, admitted that she had in the car with her a tumbler, which she said contained wine, and he said contained gin; and according to the Appellant, she had been behaving in a very familiar manner with other officers and persons at this base, or this party they had been to before they got into the car. She denied that she had been drinking, and indeed a woman doctor who examined her said that she was not drunk - and perhaps more important, when he was asked about it, the Appellant himself said that she was not drunk, although she had a certain amount to drink, but she was just "merry". In those circumstances, the jury had to make up their minds first of all whether this man was indecently assaulting this girl; and after a direction to the jury of which no complaint is made, or could be made, the jury acquitted him, as has been said, on that charge. Next, they had to consider; was the Appellant guilty of an assault occasioning her actual bodily harm? Of course, for that to be established, it had to be established that he was responsible in law and in fact for her injuries caused by leaving in a hurry the moving car, and it is the Chairman's direction with regard to the law on the second count which leads to this appeal. So far as the assault occasioning actual bodily harm was concerned, said the Chairman, "the matter arises in this way. The Prosecution say, that is to say, Miss Bell says, that driving along in the car, after the scene on the car park, the Defendant, she says, started trying to take her coat off. That act, in the context of the conversation that had been going on, if it was against her will, was an assault. The Prosecution say that was, for her, the last straw". The Prosecution were using the girl's words, "That act, that assault, say the Prosecution, caused her to jump from the car. If, therefore, you find that it was an assault, that is to say, find that the Defendant did try to take her coat off and that she was not consenting and because of that she jumped out of the car and injured herself, then that would be an assault occasioning actual bodily harm, but you have to be satisfied that there was an assault and that it was that assault that caused the harm". Then he gave an illustration, possibly misleading to the jury and not very helpful, about the way in which the harm could be caused. Then later on he came back to the second charge; "That, in point of time and space, takes us some five or ten minutes on and about two miles down the road. At that stage Miss Bell says, 'He was telling me what he had done to other women, the effect of his conversation was that he was going to have his way with me, and then he started to take off my coat. That was the last straw. I opened the car and jumped'." - the evidence of the girl I have already referred to. He then used these words, "If that be true, then without doubt, that is an assault and it occasioned actual bodily harm. Your verdict would be guilty upon that charge. His version is, 'We were arguing. Of course, I was frustrated at being stepped when I was stepped but I had nothing really to do with her jumping out of the car. It was merely a result of a verbal battle between us. She suddenly opened the door and before I could do anything she had gone'. If that be right, there was no assault. Certainly you would acquit on that- charge. But, once more, remember it is for the Prosecution who have brought the charge to prove it. If you are sure that their version be right, convict, but not otherwise". He then went in detail into the accounts of the girl and of the man. It is quite clear that nothing was said in the Court of trial about common assault. All that was said was about indecent assault, and assault occasioning actual bodily harm. As regards the Appellant's version, and the alleged indecent assault, what was said was accepted by the jury, or must have at any rate given them enough doubt to feel that they could not accept certain of the girl's evidence on that. But it follows clearly, in the view of this Court, from their verdict, that they did accept in substance the evidence of the girl, preferring it to the evidence of the Appellant. They may have been impressed - it is difficult to believe they were not impressed - by the absence of any real explanation by this Appellant of how this particular young woman came to leave the car in the circumstances which injured her, and in the condition which was attested by at least one other witness; and they did not accept his evidence - they accepted her evidence. It is very difficult for this Court to say - indeed, impossible- that they were not entitled to do so. The only question is; was there a misdirection by the Chairman which led them to that conclusion, or compelled that conclusion on their part? - and the way that is put in the grounds of appeal which Mr. Carus has pursued before us is that the Chairman was wrong in law when he told the jury "if you are satisfied that ho tried to pull off her coat and as a result she jumped out of the moving car, then your verdict is guilty". He failed to tell the jury that they must be satisfied that the cause of her injuries was the action of the Appellant, and not the fact that she was under the influence of alcohol, or any other reasons. Then he goes on to submit that the learned Chairman was wrong in failing to tell the jury that they must be satisfied that the Appellant foresaw that she might jump out as a result of his touching her, before they convicted. And there is a complaint, not really pursued in this Court, that the Judge failed to direct the jury that they might find the Appellant guilty of common assault. We have been helpfully referred to a number of reported cases, some well over a century old, of women jumping out of windows, or jumping into or throwing themselves into a river, as a consequence of threats of violence or actual violence. The most recent case is the case of Lewis (Criminal Review 1970. P.647). An earlier case is that of Beech, in 1912 (7 C.A.R. P.197) which was a case of a woman jumping out of a window and injuring herself, and of a man who had friendly relations with her, whom she knew and might have had reason to he afraid of, being prosecuted for inflicting grievous bodily harm upon her contrary to s.20 of the Offences against the Person Act. In that case, this Court approved the direction given by the trial Judge in these terms: "Will you say whether the conduct of the prisoner amounted to a threat of causing injury to this young woman, was the act of jumping the natural consequence of the conduct of the prisoner, and was the grievous bodily harm the result of the conduct of the prisoner?" That, said the Court, was a proper direction as far as the law went, and they were satisfied that there was evidence before the jury of the prisoner causing actual bodily harm to the woman. "No-one could say", said Darling J. when giving his judgment of the Court, "that if she jumped from the window it was not a natural consequence of the prisoner's conduct. It was a very likely thing for a woman to do as the result of the threats of a man who was conducting himself as this man indisputably was". This Court thinks that that correctly states the law, and that Mr. Carus was wrong in submitting to this Court that the jury must be sure that the Appellant, who is charged either with inflicting grievous bodily harm or assault occasioning actual bodily harm, must foresee the actions of the victim which result in the grievous bodily harm, or the actual bodily harm. That, in the view of this Court, is not the test. The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so "daft", in the words of the Appellant in this case, or so unexpected, not that this particular assailant did actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really the result of a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury. In those circumstances, bearing in mind that that is the law, can any fault be found with the summing up of the learned Chairman? Undoubtedly, the learned Chairman took a strong line when, in his summing up at page 8 of the transcript, he told the jury that, if the girl's account of what induced her to jump out of the car was true, then their verdict would be guilty. But the jury had to consider: is the girl's story broadly speaking about these two assaults - particularly the assault occasioning actual bodily harm with which this Court is concerned - right, or may the Appellant's story be true, in which ho fails entirely to account for the girl's jumping out of the car, except possibly for the alcohol she had taken, and her anger at his conduct- suggested not, apparently, by the Appellant himself, but by his Counsel? No fault can be found with the learned Chairman for in effect withdrawing this from the jury in the sense that he told them, "if you accept the evidence of the girl in preference to that of the man, that means that there was an assault occasioning actual bodily harm, that means that she did jump out as a direct result of what he was threatening her with, and what he was doing to her, holding her coat, tolling her he had beaten up girls who had refused his advances, and that means that through his acts he was in law and in fact responsible for the injuries which were caused to her by her decision, if it can be called that, to get away from his, his violence, his threats, by jumping out of the car." The Court has come to the conclusion, after the assistance of the arguments of Counsel on both sides, that the Judge was right to tell the jury that it was their duty to convict if they accepted the evidence of the girl, and there was no misdirection involved in his telling them just that. For those reasons, the Court finds no misdirection in the summing up, and nothing in the grounds of complaint made on behalf of the Appellant, and this appeal against conviction must be dismissed. MR PHILLIPS: The Appellant is legally aided - I do not think it suitable to ask for costs. MR. CARUS: The state of the Law in this sort of case obviously leads to difficulties. I ask for a certificate to appeal further. LORD JUSTICE STEPHENSON: No , we are indebted to you, but we cannot honestly say that we think this raises a point of general public importance.

(Revised) LORD JUSTICE EDMUND DAVIES: This is about as extraordinary a case as my brethren and I have ever heard either on the Bench or while at the Bar. Stephen William George Collins was convicted of burglary with intent to commit rape on 29th October 1971 at the Essex Assizes and he was sentenced to twenty one months imprisonment. He is a 19-year old youth, and he appeals against that conviction by the Certificate of the learned Judge. The terms in which that certificate is expressed reveals that the learned Judge was clearly troubled about the case and the conviction. Let me relate the facts. Were they put into a novel or portrayed on the stage, they would be regarded as being so improbable as to be unworthy of serious consideration and verging at times on farce. At about 2 o'clock in the early morning of Saturday 24th July of last year, a young lady of 18 went to bed at her mother's home in Colchester. She had spent the evening with her boyfriend. She had taken a certain amount of drink, and it may be that this fact affords some explanation of her inability to answer satisfactorily certain crucial questions put to her. She has the habit of sleeping without wearing night apparel in a bed which is very near the lattice-type window of her room. At one stage on her evidence she seemed to be saying that the bed was close up against the window which, in accordance with her practice, was wide open. In the photographs which we have before us, however, there appears to be a gap of some sort between the two, but the bed was clearly quite near the window. At about 3.30 or 4 o'clock she awoke and she then saw in the moonlight a vague form crouched in the open window. She was unable to remember, and this is important, whether the form was on the outside of the window sill or on that part of the sill which was inside the room, and for reasons which will later become clear, that seemingly narrow point is of crucial importance. The young lady then realised several things: first of all that the form in the window was that of a male; secondly that he was a naked male; and thirdly that he was a naked male with an erect penis. She also saw in the moonlight that his hair was blond. She thereupon leapt to the conclusion that her boyfriend with whom for some time she had been on terms of regular and frequent sexual intimacy, was paying her an ardent nocturnal visit. She promptly sat up in bed, and the man descended from the sill and joined her in bed and they had full sexual intercourse. But there was something about him which made her think that things were not as they usually were between her and her boyfriend. The length of his hair, his voice as they had exchanged what was described as 'love talk', and other features led her to the conclusion that somehow there was something different. So she turned on the bed-side light, saw that her companion was not her boyfriend. So she slapped the face of the intruder, who was none other than the Appellant. He said to her, "Give me a good time tonight", and got hold of her arm, but she bit him and told him to go. She then went into the bathroom and he promptly vanished. The complainant said that she would not have agreed to intercourse if she had known that the person entering her room was not her boyfriend. But there was no suggestion of any force having been used upon her, and the intercourse which took place was undoubtedly effected with no resistance on her part. Collins was seen by the police at about 10.30 later that same morning. According to the police, the conversation which took place then elicited these points: He was very lustful the previous night. He had taken a lot of drink, and we may here note that drink (which to him is a very real problem) had brought this young man into trouble several times before, but never for an offence of this kind. He went on to say that he knew the complainant because he had worked around the house. On this occasion, desiring sexual intercourse - and according to the police evidence he had added that he was determined to have a girl, by force if necessary, although that part of the police evidence he challenged - he went on to say that he walked around the house, saw a light in an upstairs bedroom, and he knew that this was the girl's bedroom. He found a step ladder, leaned it against the wall and climbed up and looked into the bedroom. What he could see inside through the wide open window was a girl who was naked and asleep. So he descended the ladder and stripped off all his clothes, with the exception of his socks, because apparently he took the view if the girl's mother entered the bedroom it would be easier to effect a rapid escape if he had his socks on than if he was in his bare feet. That is a matter about which we are not called upon to express any view, and would in any event find ourselves unable to express one. Having undressed, he then climbed the ladder and pulled himself up on to the window sill. His version of the matter is that he was pulling himself in when she awoke. She then got up and knelt on the bed, she put her arms around his neck and body, and she seemed to pull him into the bed. He went on, "I was rather dazed because I didn't think she would want to know me. We kissed and cuddled for about ten of fifteen minutes and then I had it away with her but found it hard because I had had so much to drink". The police officer said to the Appellant, "It appears that it was your intention to have intercourse with this girl by force if necessary, and it was only pure coincidence that this girl was under the impression that you were her boyfriend and apparently that is why she consented to allowing you to have sexual intercourse with her". It was alleged that he then said, "Yes, I feel awful about this. It is the worst day of my life, but I know it could have been worse". Thereupon the officer said to him - and he challenges this – "What do you mean, you know it could have been worse?", to which he is alleged to have replied "Well, my trouble is drink and I got very frustrated. As I've told you, I only wanted to have it away with a girl and I'm only glad I haven't really hurt her". Then he made a statement under caution, in the course of which he said "When I stripped off and got up the ladder I made my mind up that I was going to try and have it away with this girl. I feel terrible about this now, but I had too much to drink. I am sorry for what I have done." In the course of his testimony, Collins said that he would not have gone into the room if the girl had not knelt on the bed and beckoned him into the room. He said that if she had objected immediately to his being there or to his having intercourse he would not have persisted. While he was keen on having sexual intercourse that night, it was only if he could find someone who was willing. He strongly denied having told the police that he would, if necessary, have pushed over some girl for the purpose of having intercourse. There was a submission of no case to answer on the ground that the evidence did not support the charge, particularly that ingredient of it which had reference to entry into the house "as a trespasser". But the submission was overruled, and, as we have already related, he gave evidence. Now, one feature of the case which remained at the conclusion of the evidence in great obscurity is where exactly Collins was at the moment when, according to him, the girl manifested that she was welcoming him. Was he kneeling on the sill outside the window or was he already inside the room, having climbed through the window frame, and kneeling upon the inner sill? It was a crucial matter, for there were certainly three ingredients that it was incumbent upon the Crown to establish. Under section 9 of the Theft Act of 1968, which renders a person guilty of burglary if he enters any building or part of a building as a trespasser and with the intention of committing rape, the entry of the accused into the building must first be proved. Well, there is no doubt about that, for it is common ground that he did enter this girl's bedroom. Secondly, it must be proved that he entered as a trespasser. We will develop that point a little later. Thirdly it must be proved that he entered as a trespasser with intent at the time of entry to commit rape therein. The second ingredient of the offence - the entry must be as a trespasser - is one which has not, to the best of our knowledge, been previously canvassed in the courts. Views as to its ambit have naturally been canvassed by the textbook writers, and it is perhaps not wholly irrelevant to recall that those who were advising the Home Secretary before the Theft Bill was presented to Parliament had it in mind to get rid of some of the frequently absurd technical rules which had been built up in relation to the old requirement in burglary of a 'breaking and entering'. The cases are legion as to what this did or did not amount to, but happily it is not now necessary for us to consider them. But it was in order to get rid of those technical rules that a new test was introduced, namely that the entry must be "as a trespasser". What does that involve? According to the learned editors of Archbold (37th Edition, paragraph 1505), "Any intentional, reckless or negligent entry into a building will, it would appear, constitute a trespass if the building is in the possession of another person who does not consent to the entry. Nor will it make any difference that the entry was the result of a reasonable mistake on the part of the defendant, so far as trespass is concerned". if that be right, then it would be no defence for this man to say (and even were he believed in saying), "Well, I honestly thought that this girl was welcoming me into the room and I therefore entered, fully believing that I had her consent to go in". If Archbold is right, he would nevertheless be a trespasser, since the apparent consent of the girl was unreal, she being mistaken as to who was at her window. We disagree. We hold that, for the purposes of section 9 of the Theft Act, a person entering a building is not guilty of trespass if he enters without knowledge that he is trespassing or at least without acting recklessly as to whether or not he is unlawfully entering. A view contrary to that of the learned editors of Archbold was expressed in Professor Smith's book on 'The Law of Theft' (1st Edition), where, having given an illustration of an entry into premises, the learned author comments (paragraph 462), "It is submitted that ... D should be acquitted on the ground of lack of mens rea. Though under the civil law he entered as a trespasser, it is submitted that he cannot be convicted of the criminal offence unless he knew of the facts which caused him to be a trespasser or, at least, was reckless". The matter has also been dealt with by Professor Griew who in paragraph 4-05 of his work on the Theft Act has this passage: "What if D wrongly believes that he is not trespassing? His belief may rest on "facts which, if true, would mean that he was not trespassing: for instance, he may enter a building by mistake, thinking that it is the one he has been invited to enter. Or his belief may be based on a false view of the legal effect of the known facts: for instance, he may misunderstand the effect of a contract granting him a right of passage through a building. Neither kind of mistake will protect him from tort liability for trespass. In either case, then, D satisfies the literal terms of section 9(l): he 'enters ... as a trespasser'. But for the purposes of criminal liability a man should he judged on the basis of the facts as he believed them to be, and this should include making allowances for a mistake as to rights under the civil law. This is another way of saying that a serious offence like burglary should be held to require mens rea in the fullest sense of the phrase: D should be liable for burglary only if he knowingly trespasses or is reckless as to whether he trespasses or not. Unhappily it is common for Parliament to omit to make clear whether mens rea is intended to be an element in a statutory offence. It is also, though not equally, common for the courts to supply the mental element by construction of the statute". We prefer the view expressed by Professor Smith and Professor Griew to that of the learned editors of Archbold. In the judgment of this Court, there cannot be a conviction for entering premises "as a trespasser" within the meaning of section 9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party's consent. Having so held, the pivotal point of this appeal is whether the Crown established that this Appellant at the moment that he entered the bedroom knew perfectly well that he was not welcome there or, being reckless as to whether he was welcome or not, was nevertheless determined to enter. That in turn involves consideration as to where he was at the time that the complainant indicated that she was welcoming him into her bedroom. If, to take an example that was put in the course of argument, her bed had not been near the window but was on the other side of the bedroom, and he (being determined to have her sexually even against her will) climbed through the window and crossed the bed room to reach her bed, then the offence charged would have been established. But in this case, as we have related, the layout of the room was different, and it became a point of nicety which had to be conclusively established by the Crown as to where he was when the girl made welcoming signs, as she unquestionably at some stage did. How did the learned Judge deal with this matter? We have to say regretfully that there was a flaw in his treatment of it. Referring to section 9, the learned Judge said: "There are three ingredients. First is the question of entry. Did he enter into that house? Did he enter as a trespasser? That is to say, did he — was the entry, if you are satisfied there was an entry, intentional or reckless? And, finally, and you may think this is the crux of the case as opened to you by Mr. Irwin, if you are satisfied that he entered as a trespasser, did he have the intention to rape this girl?" The learned Judge then went on to deal in turn with each of these three ingredients. He first explained what was involved in "entry" into a building. He then dealt with the second ingredient. But the learned Judge here unfortunately repeated his earlier observation that the question of entry as a trespasser depended on "was the entry intentional or reckless?" We have to say that this was putting the matter inaccurately. This mistake may have been derived from a passage in the speech of Crown Counsel when replying to the submission of 'No case'. Mr. Irwin at one stage said, "Therefore, the first thing that the Crown have got to prove, my Lord, is that there has been a trespass which may be an intentional trespass, or it may be a reckless trespass". Unfortunately the learned Judge regarded the matter as though the second ingredient in the burglary charged was whether there had been an intentional or reckless entry, and when he came to develop this topic in his summing-up that error was unfortunately perpetuated. The learned Judge told the jury, "He had no right to be in that house, as you know, certainly from the point of view of the girl's parent. But if you are satisfied about entry, did he enter intentionally or recklessly? What the Prosecution say about that, is you do not really have to consider recklessness because when you consider his own evidence he intended to enter that house, and if you accept the evidence I have just pointed out to you, he, in fact did so. So, at least, you may think, it was intentional. At the least, you may think it was reckless because as he told you he did not know whether the girl would accept him". We are compelled to say that we do not think the learned Judge by these observations made it sufficiently clear to the jury the nature of the second test about which they had to be satisfied before this young man could be convicted of the offence charged. There was no doubt that his entry into the bedroom was "intentional". But what the accused had said was "She knelt on the bed, she put her arms around me and than I went in". If the jury thought he might be truthful in that assertion, they would need to consider whether or not, although entirely surprised by such a reception being accorded to him, this young man might not have been entitled reasonably to regard her action as amounting to an invitation to him to enter. If she in fact appeared to be welcoming him, the Crown do not suggest that he should have realised or even suspected that she was so behaving because, despite the moonlight, she thought he was someone else. Unless the jury were entirely satisfied that the Appellant made an effective and substantial entry into the bedroom without the complainant doing or saying anything to cause him to believe that she was consenting to his entering it, he ought not to be convicted of the offence charged. The point is a narrow one, as narrow maybe as the window sill which is crucial to this case. But this is a criminal charge of gravity and, even though one may suspect that his intention was to commit the offence charged, unless the facts show with clarity that he in fact committed it he ought not to remain convicted. Some question arose as to whether or not Collins can be regarded as a trespasser ab initio. But we are entirely in agreement with the view expressed in Archbold, again in paragraph 1505, that the common law doctrine of trespass ab initio has no application to burglary under the Theft Act 1968. One further matter that was canvassed ought perhaps to be mentioned. The point was raised that, the complainant not being the tenant or occupier of the dwelling-house and her mother being apparently in occupation, this girl herself could not in any event have extended an effective invitation to enter, so that even if she had expressly and with full knowledge of all material facts invited Collins in, he would nevertheless be a trespasser. Whatever be the position in the law of tort, to accept such a proposition as acceptable in the criminal law would be unthinkable. We have to say that this appeal must be allowed on the basis that the jury were never invited to consider the vital question as to whether this young man did enter the premises as a trespasser, that is to say knowing perfectly well that he had no invitation to enter or reckless of whether or not his entry was with permission. The certificate of the learned Judge, as we have already said, demonstrated that he felt there were points involved calling for further consideration. That consideration we have given to the best of our ability. For the reasons we have stated, the outcome of the appeal is that this young man must be acquitted of the charge preferred against him. The appeal is accordingly allowed and his conviction quashed.

LORD JUSTICE CAIRNS: The judgment I am about to read is the judgment of the Court. Mr. Justice Willis, who is unable to be present this morning, has read it and expressed his concurrence with it. On the 12th July, 1971 at South West London Quarter Sessions (Deputy Chairman Mr. Bruce Campbell, Q.C.), the Appellant was convicted of theft and fined £250. He applied for leave to appeal against conviction and the full Court granted leave to appeal. Such leave was not strictly necessary because all the grounds of appeal relied on are alleged misdirections on the law. The facts were as follows: On 27th March, 1971, the Appellant went into Ladbrokes Betting Shop at North Cheam and placed some bets upon certain horses: one of his bets was on a horse called "Fighting Scot". "Fighting Scot" did not get anywhere in the race which was in fact won by a horse called "Fighting Taffy". Because of a mistake on the part of the relief manager in the betting shop, the Appellant was paid out as if he had backed the successful horse with the result that he was overpaid to the extent of £106. 63p. He was paid £117.25p. when the amount he had won (on other races) was only £10.62p. At the very moment when he was being paid the Appellant knew that a mistake had been made and that he was not entitled to the money, but he kept it. He refused to consider repaying it, his attitude being that it was Ladbrokes hard lines. The questions of law arise under the following sections of The Theft Act, 1968: Section 1(1) A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "Steal" shall be construed accordingly. Section 2(1) A person's appropriation of property belonging to another is not to be regarded as dishonest (a) if he appropriates the property in the belief that he has in law the right to deprive the other of it ..... Section 5(4) Where a person gets property by another's mistake and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. The Deputy Chairman gave rulings in law to the following effect: he ruled that at the moment when the money passed it was money "belonging to another" and chat that ingredient in the definition of theft in Section 1(1) of the Act was therefore present. Accordingly Section 5(4) had no application to the case. If he was wrong about that then, he said, "obligation" in the sub-section included an obligation which was not a legal obligation. He told the jury what it was open to them to convict the Appellant of theft in respect of the mistaken overpayment. And he directed then that the test of dishonesty was whether the defendant believed that "when dealing with your bookmaker if he makes a mistake you can take the money and keep it and there is nothing dishonest about it." In the grounds of appeal it is contended that all these directions were wrong. The main foundation of one branch of the Appellant's case at the trial and in this Court was the decision of the Court of Appeal in Morgan v. Ashcroft, 1938 1 Kings Bench, 49. In that case a bookmaker, by mistake, overpaid a client £24. It was held that the bookmaker was not entitled to recover the money by action because that would involve taking accounts of gaming transactions which were void under The Gaming Act 1845. The argument proceeded as follows: when Ladbrokes paid the Appellant they never supposed that they were discharging a legal liability; even if he had won they need not, in law, have paid him. They simply made him a gift of the money. The Deputy Chairman was wrong in saying that at the moment of payment the money "belonged to another". At that very moment its ownership was transferred and therefore the Appellant could not be guilty of theft unless the extension given by Section 5(4) to the meaning of the words "belonging to another" could be brought into play. But Section 5(4) had no application because under the rule in Morgan v. Ashcroft the Appellant had no obligation to repay. The Deputy Chairman did not accept this line of argument. He held that it was unnecessary for the prosecution to rely on Section 5(4) because the property in the £106. 63p. never passed to the Appellant. In the view of this Court that ruling was right. The Sub-section introduced a new principle into the law of theft but long before it was enacted it was hold in R. v. Middleton, 1873 L.R. 2 CCR 38, that where a person was paid by mistake (in that case by a Post Office clerk) a sum in excess of that properly payable, the person who accepted the overpayment with knowledge of the excess was guilty of theft. Mr. Galpin seeks to distinguish the present case from that one on the basis that in Middleton the depositor was entitled to withdraw 10/- from his Post Office Savings Bank Account and the clerk made a mistake in thinking he was entitled to withdraw more than £8, whereas in the present case there was no mistake about the Appellant's rights - whether his horse won or lost he had no legal right to payments. In our view this argument is fallacious. A bookmaker who pays out money in the belief that a certain horse has won, and who certainly would not have made the payment but for that belief, is paying by mistake just as much as the Post Office clerk in Middleton. The gap in the law which Section 5(4) was designed to fill was, as the Deputy Chairman rightly held, that which is illustrated by the case of Moynes v. Cooper, 1956 1 King's Bench, 439. There a workman received a paypacket containing £7 more than was due to him but did not become aware of the overpayment till he opened the envelope some time later. He then kept the £7. This was held not to be theft because there was no animus furandi at the moment of taking, and R. v. Middleton was distinguished on that ground. It was observed at p. 445 that the law as laid down in R v. Middleton was reproduced and enacted in Section 1(2)(i) of the Larceny Act 1916. It would be strange indeed if Sub-section 5(4) of the 1968 Act, which was designed to bring within the net of theft a type of dishonest behaviour which escaped before, were to be held to have created a loophole for another type of dishonest behaviour which was always within the net. An alternative ground on which the Deputy Chairman held that the money should be regarded as belonging to Ladbrokes was that "obligation" in Section 5(4) meant an obligation whether a legal one or not. In the opinion of this Court that was an incorrect ruling. In a criminal statute, where a person's criminal liability is made dependent or his having an obligation, it would be quite wrong to construe that word so as to cover a moral or social obligation as distinct from a legal one. As, however, we consider that the Deputy Chairman was right in ruling that the prosecution did not need to rely on Section 5(4) his ruling on this alternative point does not affect the result. The other main branch of the Appellant's case is the contention that the Deputy Chairman misdirected the jury on the meaning of "dishonestly" in Section 1(1) of the Theft Act. The relevant part of the Appellant's evidence is set out in the summing up in a passage of which no complaint is made: "Now, what this man says is that he did not act dishonestly. He says in his view Bookmakers and punters are a race apart and that when you are dealing with your bookmaker different rules apply. He agreed it would be dishonest if his grocer gave him too much change and he knew it and kept the change; he agreed it would be dishonest but he says bookmakers are different and if your book-maker makes a mistake and pays you too much there is nothing dishonest about keeping it." The Deputy Chairman, having referred to this evidence, and to evidence that the Defendant had not hurried away from the betting shop after receiving this large sum, said, "Well, it is a matter for you to consider, Members of the Jury, but try and place yourselves in that man's position at that time and answer the question whether in your view he thought he was acting honestly or dishonestly." In our view that was in the circumstances of this case a proper and sufficient direction on the matter of dishonesty. On the face of it the Appellant's conduct was dishonest: the only possible basis on which the jury could find that the prosecution had not established dishonesty would be if they thought it possible that the Appellant did have the belief which he claimed to have. (There is no complaint about the direction as to onus: the Deputy Chairman expressly said: "The prosecution have to satisfy you that he did appropriate the money dishonestly') Mr. Galpin thought that the jury should be specifically reminded of the terms of Section 2(1)(a) of the Act and suggested this to the Deputy Chairman. The Deputy Chairman then summarised the sub-section, gave a somewhat irrelevant illustration of a case where it might apply, and then added "Nor would somebody be guilty of theft if he believed, even if he was wrong, but nevertheless believed he had some right in law to take the property and that, you see, is the reason why Mr. Galpin puts the case on behalf of the Defendant that this Defendant believed that when dealing with your bookmaker if he makes a mistake yon can take the money and keep it and there is nothing dishonest about it." The complaint is centred on the word "and". It is contended that the jury may have understood this direction to mean that the Appellant would be acting dishonestly unless (a) he believed he had the right to take the money and keep it and (b) he believed there was nothing dishonest about that conduct. It is said that the jury may have thought that the Appellant's state of mind was "I believe that in law I am entitled to take from my bookmaker anything he is foolish enough to pay me, though of course I know that it would be dishonest to do so", and he pointed out that under the Sub-section this would entitle him to be acquitted whereas the direction might be taken to mean that he would be guilty. In our opinion this is too refined an argument. We think it is clear that in the context the word "and" meant "and therefore" or "and so" and the jury would understand it in that way. A few minutes earlier the Deputy Chairman had accurately stated the effect of the sub-section in words that could not be clearer. The Appellant in his evidence had drawn no distinction between what he believed he was in law entitled to do and what he believed it was honest to do. His own words were "there is nothing dishonest about keeping it", not "I think you are entitled in law to keep it". If the two expressions are taken to have different meanings the Appellant had not made out any case under Section 2(1)(a); if they are taken to have the same meaning then no complaint can be made of the way in which the Deputy Chairman dealt with the matter. For these reasons this court is of the opinion that all the grounds of appeal fail and that the appeal must be dismissed. MR. WEBB: I wonder if I might ask you to certify that there is a point of law of general public importance? LORD JUSTICE CAIRNS: What is the point of general public importance that you wish us to certify? MR. WEBB: That the case deals with an area where dishonesty and illegality are being distinguished, and this sort of mistake is happening a great deal among betting ..... LORD JUSTICE CAIRNS: That is not a point of law. Tell us what the point of law is. MR. WEBB: I am unable to do so .... I am bound to say this is a point of fact and not ...... LORD JUSTICE CAIRNS: I think you are right, yes. The Court is unable to certify that there is a point of law of general public importance.